Loch v John Blackwood Ltd

Viscount Fintay. My Lords, the appellants are a com-
pany formed for the purpose of working concessions in
Kelantan. The respondents are described as "' The Govern-
ment of Kelantan." The appellants held certain rights and
privileges in the State of Kelantan under an agreement made

(1) [1894] 1 Q. B. 149.

A. C. AND PRIVY COUNCIL.

with them by the Rajah of that State in 1905. This agreement
was cancelled by an indenture made on July 15, 1915, between
the Crown Agents for the Colonies, acting for and on behalf
of the Government of Kelantan, and the appellant company,
and by the same indenture grants were made of certain lands
and rights in Kelantan to the company. By the twenty-
first clause of the indenture all disputes relating to it were
to be referred to a sole arbitrator, and this clause was to be
deemed a submission to arbitration under the Arbitration
Act of 1889, the provisions of which were to apply as far as
applicable.

In 1919 such disputes arose, and they were referred to
Sir Edwin Speed, who made his award on November 17,
1921. The Government of Kelantan moved before Russell J.,
in the Chancery Division, to set aside the award on the
ground of mistake in law; this motion was dismissed with
costs on March 23, 1922, and Russell J.'s decision was affirmed
in the Court of Appeal on May 24, 1922, and in the House of
Lords on March 22, 1923. In these proceedings the Kelantan
Government raised no objection on the ground of privilege
as a sovereign State, but rested their case on such grounds
as are open to any party to an arbitration. They had dis-
puted their liability before the arbitrator and they challenged
the award itself when made as invalid upon legal grounds.

Before the appeal to the House of Lords just referred to,
the appellant company applied to Master Bonner for an order
under s. 12 of the Arbitration Act, 1889, for leave to enforce
the award in the same manner as a judgment or order. On
this summons two questions arose, (1.) whether the Kelantan
Government is a sovereign State, and (2.) whether, if the
first question were answered in the affirmative, execution
could be issued against it in the Courts of this co:ntry. The
Government of Kelantan did not appear on the summons
before Master Bonner, and on June 21, 1922, he made an
order that the appellants be at liberty to enforce the award
in the same manner as a judgment or order to the same
effect.

The Government of Kelantan then applied on a summons

811

H. L. (E.)
1924

ass
Durr
DEVELOP-
MENT Co.
Vv.
KELANTAN
GOVERN-
MENT.
Viscount
Finlay.

812 HOUSE OF LORDS [1924]

H. L. (E.) before Master Jelf for an order that the summons before

1924 Master Bonner, the alleged service of it on the Government
Durr and the order made thereon on June 21, should be set aside

a ete on the ground that the Government of Kelantan is that of a
ee ve sovereign ruler. The hearing was adjourned in order that
AELANTAN

Govern- Master Jelf might communicate with the Colonial Office.
MENT,

Fan The Colonial Office sent to Master Jelf a letter dated
Finlay. October 9, 1922, informing him that Kelantan is an inde-
pendent State in the Malay Peninsula and that the Sultan
is the sovereign ruler thereof. The letter also enclosed
(1.) the English text of an agreement in 1902 conferring upon
Siam certain rights over Kelantan; (2.) a treaty between
Great Britain and Siam dated March 10, 1909, transferring
these rights to His Majesty's Government; and (3.) an agree-
ment between Great Britain and Kelantan dated October 22,
1910. This last agreement provided by art. 1 that Kelantan
should have no relations with any foreign power except
through the King of Great Britain ; by art. 2 that His Majesty
might appoint officers to advise the Rajah of Kelantan,
and that the Rajah should follow their advice in all matters
of administration other than those touching the Mohammedan
religion and Malay custom, and by art. 3 that the Rajah of
Kelantan should not enter into agreements concerning land,
or grant or allow the transfer of any concession, in favour
of any person other than a native of Kelantan, or appoint
officials other than natives, without the consent of His
Majesty's Government. There were also clauses providing
for the raising of troops in Kelantan in certain events (art. 4) ;
stipulations that internal administration should not be inter-
fered with except in certain contingencies (art. 5); and pro-
visions with reference to posts, telegraphs and railways
(arts. 6 and 7). Art. 8 provided that nothing in the agree-
ment should affect the administrative authority then held
by the Rajah of Kelantan, and that except as provided in
the agreement the relations between the Rajah and His
Majesty's Government should be the same as those which
had existed between the Rajah and the Siamese Government.
With the consent of His Majesty, the Rajah of Kelantan,

ed

A. C. AND PRIVY COUNCIL. 813

after the date of the last-mentioned agreement, assumed H. L. (E.)

the title of Sultan of Kelantan, and is now so designated. 1924
Master Jelf held that Kelantan is a sovereign State, and Dorr

by his order dated December 12, 1922, set aside the order hes

MENT Co,

made by Master Bonner. Roche J. on appeal reversed the ieee

order of Master Jelf; he was, however, himself reversed by Govern-
the Court of Appeal on January 17, 1923, so that the order — 4
of Master Jelf stands good subject to the present appeal. Finlay,

It is from this decision of January 17 that the present appeal

is brought to this House.

The first question to be determined is as to the status of
Kelantan—is the Sultan a sovereign prince ?

It is settled law that it is for the Court to take judicial
cognizance of the status of any foreign Government. If
there can be any doubt on the matter the practice is for
the Court to receive information from the appropriate depart-
ment of His Majesty's Government, and the information so
received is conclusive. The judgment of Farwell J. in
Foster v. Globe Venture Syndicate (1) seems to me to be a
perfectly accurate statement of the law and practice on
this point. There are a great many matters of which the
Court is bound to take judicial cognizance, and among them
are all questions as to the status and boundaries of foreign
powers. In all matters of which the Court takes judicial
cognizance the Court may have recourse to any proper source
of information. It has long been settled that on any
question of the status of any foreign power the proper course
is that the Court should apply to His Majesty's Govern-
ment, and that in any such matter it is bound to act
on the information given to them through the proper
department. Such information is not in the nature of
evidence ; it is a statement by the Sovereign of this country
through one of his Ministers upon a matter which is
peculiarly within his cognizance.

The letter of the Colonial Office is not an expression of the
opinion of the official who wrote it. The first sentence is:
"'T am directed by Mr. Secretary Churchill to inform you

(1) [1900] 1 Ch. 811.
A. C. 1924, 3 as

DrEvELOP-
MENT Co.
v.
KELANTAN
GOVERN-
MENT.

Viscount
Finlay.

HOUSE OF LORDS [1924]

in reply to your letter of 18th July that Kelantan is an
independent State in the Malay Peninsula and that His
Highness Ismail" (etc.) 'is the present sovereign ruler
thereof." This is an official answer by the Secretary of
State on behalf of the Government.

The question put was as to the status of the ruler of
Kelantan. It is obvious that for sovereignty there must be
a certain amount of independence, but it is not in the least
necessary that for sovereignty there should be complete
independence. It is quite consistent with sovereignty that
the sovereign may in certain respects be dependent upon
another Power; the control, for instance, of foreign affairs
may be completely in the hands of a protecting Power, and
there may be agreements or treaties which limit the powers
of the sovereign even in internal affairs without entailing a
loss of the position of a sovereign Power. In the present
case it is obvious that the Sultan of Kelantan is to a great
extent in the hands of His Majesty's Government. We
were asked to say that it is for the Court and for this House
in its judicial capacity to decide whether these restrictions
were such that the Sultan had ceased to be a sovereign. We
have no power to enter into any such inquiry. The reply
of the Colonial Office to Master Jelf on October 9, 1922,
states that Kelantan is an independent State in the Malay
Peninsula and that the Sultan is the sovereign ruler, that
His Majesty's Government does not exercise or claim any
rights of sovereignty or jurisdiction over Kelantan, and that
the Sultan makes laws, dispenses justice through Courts,
and, generally speaking, exercises without question the usual
attributes of sovereignty.

In the face of this statement it is hopeless to contend
that the Colonial Office, by appending to its letter the agree-
ments with Siam and with Great Britain, referred it to the
Courts to decide upon these documents whether the Sultan
was sovereign or not. Such an interpretation is contrary
to the plain terms of the letter. Of course, the Colonial
Office might have given a bald answer that the Sultan is a
sovereign, but it has been the practice when there are

A. C. AND PRIVY COUNCIL.

agreements or treaties dealing with the powers of the alleged
sovereign to append to the reply on the question of sovereignty
copies of any documents. There are very good reasons for
this practice. The department might lay itself open to
serious misunderstanding if it took any other course. It
might be said that there was a want of candour in merely
stating the conclusion that the Power is a sovereign Power
without disclosing any such limitations on the sovereignty
as exist here. The contention that by appending these
documents the Colonial Office remits the question to the
Court to form its own opinion upon it is based on a miscon-
ception. When the letter and the documents are read
together, it is clear that the Secretary of State says explicitly
that the Sultan is a sovereign ruler, and the documents are
appended by way of making it clear that their effect has been
considered and that the Colonial Office has given all due weight
to them in arriving at the conclusion that the Sultan is a
sovereign prince. There is no ground for saying that because
the question involves considerations of law these must be
determined by the Courts. The answer of the King, through
the appropriate department, settles the matter whether it
depends on fact or on law.

It is true that by the agreement of October 22, 1910, the
Sultan is bound not to have relations with any foreign Power
except through His Majesty the King, and to follow the
advice given him by the advisers appointed by His Majesty
"in all matters of administration, other than those touching
the Mohammedan religion and Malay custom." But it
would be idle to contend that sovereignty is destroyed by
the fact that a protecting Power has charge of foreign
relations, and as regards the internal affairs the exception
from the obligation to be guided by the advisers appointed
by His Majesty is a very large one, as it comprises all matters
touching the religion and the customary law of the country.
The restrictions on the grant of concessions and the employ-
ment of officials in art. 3, and the provisions as to posts,
telegraphs and railways in arts. 6 and 7 are quite consistent
with the sovereignty of the Sultan, and so are the restrictions

3 3 K 2

815

H. L. (E.)

Viscount
Finlay.

816 HOUSE OF LORDS [1924]

H. L. (E.) on the grant of concessions for the construction of railways
1924 within the State (art. 7). Art. 5 is as follows :—
Durr "His Majesty's Government undertake not to interfere
Sten, with the internal administration of the State of Kelantan
Keiseran Otherwise than as provided for in this agreement, so long as

Govern- nothing is done in that State contrary to the treaty rights

cea Nae obligations that His Majesty's Government have with

Viscount

Finlay. foreign Governments, and so long as peace and order are
maintained in the State of Kelantan, and it is governed for
the benefit of its inhabitants with moderation, justice and
humanity."

And art. 8 provides that " nothing in this agreement shall
affect the administrative authority now held by the Rajah of
Kelantan,' and that except as provided in the agreement
the relations between the Rajah and His Majesty's Govern-
ment shall be the same as those which previously existed
between him and the Siamese Government.

While there are extensive limitations upon its independence,
the enclosed documents do not negative the view that there
is quite enough independence left to support the claim to
sovereignty. But, as I have said, the question is not for us
at all; it has been determined for us by His Majesty's
Government, which in such matters is the appropriate
authority by whose opinion the Courts of His Majesty are
bound to abide.

The second question in the case is whether the Government
of Kelantan had made such a submission to the jurisdiction
of the Courts here that execution can be issued upon the
award against any property in this country of the Kelantan
Government.

It was contended by the appellant company that there
was such a submission in art. 21 of the indenture of July 15,
1912, which contains the contract between the appellant
company and the Kelantan Government.

This article begins by providing for the reference of any
disputes under the contract to a sole arbitrator, and then
proceeds: "' And this shall be deemed a submission to
arbitration within the Arbitration Act, 1889, or any statutory

Pe I

A. C. AND PRIVY COUNCIL.

modification or re-enactment thereof for the time being in
force the provisions whereof shall apply as far as applicable."

One of the provisions of this Act is s. 12 :—

"An award on a submission may, by leave of the Court or
a judge, be enforced in the same manner as a judgment or
order to the same effect.'

We are asked by the appellant company to say that this
clause is a submission to the jurisdiction of the Court to
order execution to issue upon the award against the property
of the Government of Kelantan.

To appreciate this question it is necessary to refer to the
history of our law with regard to the enforcement of awards.

Apart from statute the award of an arbitrator on a reference
by agreement could be enforced only by action. When this
was the state of the law it could not have been contended
that a reference by agreement to arbitration with a foreign
Government even if made in England would involve any
obligation on the part of the foreign Government to submit
to the jurisdiction of the English Courts in an action to
enforce the award. When such an action was brought it
would be at the option of the foreign Government to appear
or not, as it pleased. There would certainly be no obligation
upon it to accept the jurisdiction and to submit to judgment
and execution against any property belonging to it in
England. There is nothing in an agreement for settlement
by arbitration to import a waiver of the right of a sovereign
Power to refuse the jurisdiction of the English Courts in an
action upon the award.

As time went on more summary remedies were given in
addition to the remedy by action. In 1698 it was provided
that the parties might agree that the submission should be
made a rule of Court and that the Court might make it a
rule of Court accordingly, and that any party disobeying
the award should be liable to all penalties for contemning a
rule of Court: 9 Will. 3, s. 15, s. 1. This proceeding, it will
be observed, required the consent of the parties.

The Common Law Procedure Act, 1854, s. 17, went a step
further, and provided that any agreement in writing for a

817

H. L. (E.)
1924

aS,
Durr
DEVELOP-
MENT Co.
v.
KELANTAN
GOVERN-
MENT,
Viscount
Finlay.

818 HOUSE OF LORDS [1924]

H. L. (E.) reference might be made a rule of Court unless the agreement
1924 provided to the contrary. It seems clear that this provision
Durr could not be put in force against a foreign Government

DEVELOP- : ; i,

ment Co, Without its consent.

Kutewray Lhe Judgments Act, 1838 (1 & 2 Vict. c, 110, s. 18),

Govern- provides that all rules of Court for the payment of money
MENT.

eae should have the effect of judgments. This enactment still
Finlay. remains in force, but the sections of the Act of William III.
and of the Common Law Procedure Act, 1854, above referred
to, were repealed by the Arbitration Act, 1889, which by
s. 12 provides, as already stated, that an award on sub-
mission may by leave of the Court or a judge be enforced
in the same manner as a judgment or Order to the same
effect. ie

In considering the effect of this s. 12 of the Arbitration.
Act it is material to observe that in the case of all the
previous enactments for the same purpose the party against
whom the rule was applied for would have the opportunity
of opposing it, and it is clear that no such rule would have
been made as against a sovereign State unless it had entered
into an agreement submitting to the jurisdiction. The
procedure by rule was merely an alternative procedure for
the procedure by action, and the foreign State would have
the same right of asserting its immunity as if the old remedy
by action on the agreement had been resorted to.

Sect. 12 of the Arbitration Act of 1889 involved merely a
change of procedure. The award may under it, by leave of
the Court, be enforced as if it were a judgment. Application
must be made to the Court for leave, and it appears to me
that on such an application, if the other party to the award
is a sovereign State, that party might assert its immunity
from process and that the Court would be bound to refuse
leave unless the objection had been waived.

Art. 21 in the indenture of July 15, 1912, on which the
appellants rely as incorporating s. 12 of the Arbitration Act,
cannot have the effect suggested. Sect. 12 can be made opera-
tive only by leave of the Court. I fail to see how art. 21
can possibly be read as an agreement by the Government

:

A. C. AND PRIVY COUNCIL.

of Kelantan to consent to an Order for such leave being
made. The leave of the Court being necessary before the
award can be enforced as if it were a judgment, if a sovereign
State claimed its immunity this would be a good reason for
refusing the leave. The assertion that the agreement for
the application of the provisions of the Arbitration Act
involves a waiver of the right to object to execution on the
ground of sovereignty involves reading s. 12 of the statute of
1889 as if it conferred a right to have execution on the award.
The only right conferred is a right to apply for leave to issue
execution on the award, and this leave will be granted only
in suitable cases. It is not a suitable case if a foreign
Government is concerned, unless there has been a clear
waiver by that Government of its sovereign rights for this
purpose. To the arbitration the Government of Kelantan
had no objection; they attended the proceedings throughout.
It was only when it was proposed to take a step which involved
the right to execution against the Government that there
was any occasion to raise the objection of sovereignty.
The present case differs fundamentally from the case of

an action in which a foreign Government has appeared and

has had judgment given against it. It is not necessary to
decide that case for the purpose of the present appeal; here
the only consent was to arbitrate.

The application to set aside the award was based entirely
on the allegation that the arbitrator had gone wrong on a
point of law and that this appeared on the face of the award.
The award in that case might be set aside. I cannot see
how we can construe such an application as involving an
admission that if it failed the Government property might be
taken in execution. The Kelantan Government had opposed
the claim made in the arbitration throughout. Their motion
was made to get rid of the award as vitiated by a wrong
view of the law. The Government were quite entitled to
get rid of an award the making of which they had opposed,
and the motion to set it aside was solely on the ground that
the award was inherently bad.

On this part of the case very many authorities were

819

H. L. (E.)
1924

-—~
Durr
DrVELOP-
MENT Co.
v.
KELANTAN
GOVERN-

MENT.

Viscount
Finlay.

820 HOUSE OF LORDS [1924]

H. L. (E.) cited. I do not consider it necessary to refer to them. The

1924 question is a very short one: Have the Kelantan Govern-

Durr ment waived objection to execution upon their property in

Deveror- this country? It is beyond question that Kelantan as a

eee sovereign State is entitled to immunity from execution
Govern- against the property of the Sultan, unless there has been a
ww waiver.
Tinley. I concur with the judgment delivered by the Master of

the Rolls in this case, and think that he took the proper
course in deciding the substantial question which had been
litigated and in refusing to amend the application in the
nebulous fashion suggested.

I am of opinion that this appeal should be dismissed with
costs, but I think that the appellants should be allowed a
set-off in respect of any costs due to them in respect of the
other proceedings relating to the award which have not
been paid.

Lorp Dunrepin. My Lords, I concur. On the first point
I have little to add to what has been said by my noble and
learned friend on the Woolsack. It seems to me that once
you trace the doctrine for the freedom of a foreign sovereign
from interference by the Courts of other nations to comity,
you necessarily concede that the home sovereign has in
him the only power and right of recognition. If our
sovereign recognizes and expresses the recognition through
the mouth of his minister that another person is a sovereign,
how could it be right for the Courts of our own sovereign to
proceed upon an examination of that person's supposed
attributes to examine his claim and, refusing that claim, to
deny to him the comity which their own sovereign had
conceded? The second point is whether the Sultan has
in this case submitted to the jurisdiction. It is true that
the learned judges of the Court of Appeal based
their judgment on the judgment they had pronounced
the day before in the garnishee action, and in that
action they had held that the Sultan's property could
not be taken in execution of costs awarded against

A. C. AND PRIVY COUNCIL. 821

him in the action where he had submitted to the juris- H. L. (E.)
diction by appearing as a plaintiff to seek to have the award _—1924

——

set aside. My Lords, I wish most emphatically to state that I _ Durr
DEVELOP-

could not be held to approve of that part of the judgment in 'enr Co.

the garnishee case or the headnote in the case of the South yo. van

African Republic v. La Compagnie Franco-Belge du Chemin Govern-

de Fer du Nord (1), which I consider wrong and misleading. nto, fe
But the question as to the power of execution for costs so pe

awarded is not raised by the present action, and it is therefore <
probably better that no considered opinion should be given
on that subject. The only question to my mind is whether
the Sultan submitted to the jurisdiction by entering into the
agreement to refer or by appearing in the reference. The
present action does not embrace the Chancery costs. It
seeks to enforce the award as a judgment. The Sultan does
not in this action waive the privilege of sovereignty. He
can therefore only be subjected to the jurisdiction if either
he has done so by appearing as plaintiff in the Chancery suit
or by his subscription of the contract. Now, so far as the
suit is concerned, I do not think this proceeding is a
proceeding which could have founded a cross-action or
counter-action to the suit. The same argument as prevailed
in the South African Republic Case (1) prevails here. Then,
as regards arbitration. An arbitrator is not a Court, and
therefore by appearing before the arbitrator he did not
submit himself to the jurisdiction of the Courts. (It may be
interesting to note that under the Roman law appearance
before an arbiter did not give rise to reconvention : see a very
learned judgment of Inglis L.J.-C., in Thompson v. Whitehead. (2))
True it is that the Sultan contracted to allow the jurisdiction
to be exercised against him, but he did so out of Court, and
now he has changed his mind. He has broken his contract,
but the Court has no jurisdiction to enforce any performance
of it. It seems to me to say that by agreeing to submit he
did submit is to argue in a circle.

I therefore agree that the present action fails and that
the appeal should be dismissed.

(1) [1898] 1 Ch. 190. (2) (1862) 24 D. 331.

ie i

DEVELOP-
MENT Co.
v.
KELANTAN
GOVERN-
MENT.

HOUSE OF LORDS [1924]

Lorp Sumner. My Lords, I should not trouble your
Lordships at any length with my reasons for thinking that
this appeal fails, if it were not for the novelty of this
important subject in your Lordships' House.

The principle is well settled, that a foreign sovereign is
not liable to be impleaded in the municipal Courts of this
country, but is subject to their jurisdiction only when he
submits to it, whether by invoking it as a plaintiff or by
appearing as a defendant without objection. For present
purposes it is not necessary to examine the particular theory
of law on which this principle is rested. The practice is also
well settled that the Court may and generally should make
its own inquiry of the competent Secretary of State in order
to ascertain, in case of need, whether a particular State is
a sovereign State, or a particular person is the head, hereditary
or elected, of such a State.

Your Lordships were frankly told at the Bar that this
case is virtually an appeal against Mighell v. Sultan of
Johore (1), in which that practice was approved. The
questions there put to the Colonial Office by direction of the
Court were not simply answered Aye or No, but were answered
affirmatively with the addition of details explaining the
Treaty relations of Johore with Her Majesty Queen Victoria.
In The Charkieh (2) a similar question was put to the Foreign
Office with regard to the Khediviate of Egypt and was
answered in the negative in the terms " the Khedive has not
been and is not now recognized by Her Majesty as reigning
sovereign of the State of Egypt." In The Annette (3) the
reply was that His Majesty was provisionally co-operating
with the new Government, in opposition to the Soviet
Government, but had not yet formally recognized it as the
Government of a sovereign independent State. In The
Gagara (4) the statement by the Foreign Office was that
Esthonia was recognized as a sovereign State, but pro-
visionally. Thus in one case a clear answer was given that
there had been no recognition; in another that the State

(1) [1894] 1 Q. B. 149. (3) [1919] P. 105.
(2) L. RB. 4A. & E. 59, 86, (4) [1919] P. 95.

A. C. AND PRIVY COUNCIL.

was sovereign and was so recognized, but with further infor-
mation as to the Crown's Treaty relations with it; in the
third that common action had taken place but without
recognition of sovereignty ; in the fourth that there was only
provisional recognition, but still the State had been recog-
nized as sovereign. Two are cases of States of some antiquity ;
two are cases of Governments of recent and troublous origin.
The same procedure was, however, followed in them all.

Certain expressions used by Brett M.R. and Kay LJ.
in giving judgment in the Sultan of Johore's Case (1) appear
to suggest that the reason why the answer of the Colonial
Office ought to be accepted without further discussion, is,
that in effect it is something which the Crown deigns to
declare to its Courts of law, and therefore it cannot be
criticized or supplemented, since that would be disrespectful
to the Crown itself. That this view of the meaning of the
Court of Appeal has had its effect is shown by the language
used by Farwell J. in Foster v. Globe Venture Syndicate. (2)
The appellants, however, desire to go a little behind the form
observed. They not unreasonably say: "An official of the
Colonial Office advises the Sultan to go to arbitration, and
the same official of the Colonial Office, or some other, advises
him to dispute the award, and then the Colonial Office, in
the name of the Crown, says that the Sultan is a sovereign
and so is bound to nothing, not even to pay for what the
Colonial Office has advised him to do. What then is the state-
ment that the Sultan is a sovereign? Is it the voice of the
sovereign of this country or is it in reality nothing but the
contention of some one in the Colonial Office ? "

Without contesting in the least either the inconvenience
or the impropriety of any conflict between the High Court
and the Secretary of State upon the grave question of the
sovereignty of the Sultan of Kelantan, I venture to think that
the mere obligation of deference to any statement made
in His Majesty's name hardly constitutes the whole legal
basis for the rule laid down in the Johore Case. (1)

The status of foreign communities and the identity of

(1) [1894] 1 Q. B. 149. (2) [1900] 1 Ch. 811.

823

H. L. (E.)

MENT Co.
Vv.
KELANTAN
GOVERN-
MENT.

Lord Sumner,

824 HOUSE OF LORDS [1924]

H. L.(E.) the high personages who are the chiefs of foreign states, are

1924 matters of which the Courts of this country take judicial
Durr notice. Instead of requiring proof to be furnished on these

eo subjects by the litigants, they act on their own knowledge or,
Kutawran i necessary, obtain the requisite information for themselves.

Govern- J take it that in so doing the Courts are bound, as they would
MENT.

Wriacd be on any other issue of fact raised before them, to act on
= the best evidence and, if the question is whether some new
State or some older State, whose sovereignty is not notorious, is
a sovereign State or not, the best evidence is a statement,
which the Crown condescends to permit the appropriate
Secretary of State to give on its behalf. It is the prerogative
of the Crown to recognize or to withhold recognition from
States or chiefs of States, and to determine from time to time
the status with which foreign powers are to be deemed to be
invested. This being so, a foreign ruler, whom the Crown
recognizes as a sovereign, is such a sovereign for the purposes
of an English Court of law, and the best evidence of such
recognition is the statement duly made with regard to it in
His Majesty's name. Accordingly where such a statement
is forthcoming no other evidence is admissible or needed. I
think this is the real judicial explanation why it was held
that the Sultan of Johore was a foreign sovereign. In con-
sidering the answer given by the Secretary of State, it was
not the business of the Court to inquire whether the Colonial
Office rightly concluded that the Sultan was entitled to be
recognized as a sovereign by international law. All it had
to do was to examine the communication in order to sec if
the meaning of it really was that the Sultan had been and
was recognized as a sovereign.

There may be occasions, when for reasons of State ful,
unconditional or permanent recognition has not been accorded
by the Crown, and the answer to the question put has to
be temporary if not temporising, or even where some vaguer
expression has to be used.(1) In such cases not only has
the Court to collect the true meaning of the communication
for itself, but also to consider whether the statements as to

(1) [1919] P. 105.

A. C. AND PRIVY COUNCIL.

Sovereignty made in the communication and the expressions
"sovereign"' or '"'independent" sovereign used in the legal rule
mean the same thing. Best C.J. says in Yrisarri v. Clement (1)
that recognition is conclusive, but, if there is no recognition
yet given, the independence becomes matter of proof. I
conceive that, if the Crown declined to answer the inquiry,
as in changing and difficult times policy might require it to
do, the Court might be entitled to accept secondary evidence
in default of the best, subject, of course, to the presumption
that, in the case of a new organization, which has de facto
broken away from an old State, still existing and still
recognized by His Majesty, the dominion of the old State
remains unimpaired until His Majesty is pleased to recognize
the change. In The Charkieh (2) the Foreign Office returned
a definite and unambiguous answer that the Crown had
never recognized the Khedive Ismail or his predecessors as
sovereigns, but only as provincial authorities, albeit hereditary
ones, who derived their authority and status from the Sultan
of Turkey. This was conclusive, and hence it is that
Brett M.R. indicated his opinion, that the further inquiries
made by Sir R. Phillimore were unnecessary. In the present
case there is a precise and sufficient statement as to the
status of the Sultan of Kelantan, as recognized by His
Majesty, with nothing ambiguous about it.

The questions, what are the boundaries of a foreign State ?
and also what communities or tribes are under its authority ?
apart from any recognition of their sovereignty or refusal to
recognize it, are questions, which seem to me to stand on a
different footing. I express no concluded opinion, but, for
the purpose of making clearer the reasons above given by
considering the converse case, I venture to suggest my
present view.

In this connection two cases may be usefully compared :
Foster v. Globe Venture Syndicate (3) and Luther v. Sagor. (4)
In the former Farwell J. treated the question whether the

(1) 2.0. & P. 223, 225. (4) [1921] 1 K. B. 456 (on appeal
(2) L. R.4 A. & E. 59. [1921] 3 K. B. 532).
(3) [1900] 1 Ch, 811.

825

H. L. (E.)
1924

pets
DuFF

DEVELOP-

MENT Co,

v.

KELANTAN

GOVERN-
MENT.

Lord Sumner,

826 HOUSE OF LORDS [1924]

H.L.(E.) Suss district was within the territories of Morocco as
1924 equivalent in character to the question whether the Suss
Durr tribes had or had not been recognized as independent. He

Devere' appears to have thought that one matter for judicial notice

ae was the geographical extent of the jurisdiction of the Suss
ELANTAN :
Govern. tribes, if they were recognized as independent. I confess,

MENT.

= though with the diffidence that I always feel in criticising so
es great a judge, that the two questions seem to me to be quite
different. Tio ask if the Crown has recognized a State as a
sovereign State is one thing; to ask exactly what the
boundaries of that State are at any time and whether
certain persons live within or without them is quite another.
The reason acted on by Farwell J. was the expression quoted
from Thompson v. Barclay (1): "The Courts of the King
should act in unison with the Government of the King."
This seems to be rather a maxim of policy than a rule of
law. If, as Farwell J. supposed, cases had occurred in which
the Crown had applied for redress of wrongs, suffered locally
by British subjects, either to the Sultan of Morocco or to
the head of the independent Suss tribes, such an act would
have been in the former case a recognition of the Sultan as
sovereign of the district in question, and in the latter a
recognition of the Suss tribes both as a sovereign State and as
exercising that sovereignty in that district. No doubt the
statement of the Foreign Office that this was so would be
conclusive. Either it would state the recognition of the
Suss tribes or it would state the recognition of the extent of
the Sultan's local sovereignty, much as if application had
been made by the Sultan for an exequatur for a British
Consul to be stationed in the district. Probably Farwell J.
meant no more than this. The frontiers of foreign countries
are matters of geography, not always involved with matters
of State. Certainly it is not always safe for Courts to form
their own impression on such subjects. Hong Kong, for
example, has been spoken of judicially as if it were a Chinese
port: Nobel's Explosives Co. v. Jenkins & Co. (2) It does
not, however, follow that, on mere questions of this

(1) 2Sim, 213, 221. (2) (1896) 1 Com, Cas. 436, 439.

A. C. AND PRIVY COUNCIL.

kind, resort ought to be had to the Foreign Office, or that
its answer, if given, must necessarily be taken to be correct
in fact. I do not think it has yet been held or ought to
be held that the Crown must be deemed to know all the
geographical boundaries of all foreign States at all times,
and this so that its statement on the subject would be
conclusive. Contiguous States have often disputed their
common boundary, and no other State has had occasion to
know where it runs any better than they have done themselves.
This was so in the last century with regard to the northern
boundary of the State of Maine and Canada, and of the
common frontier in the Oregon Territory. More recently
there have been cases of this kind between the various
Republics of South America. How can a judge of the High
Court take judicial notice of untraced lines, and how can
His Majesty's Government tell him with authority exactly
where they are? I doubt very much if the boundaries of
the dominions of the Emir of Riad in Central Arabia were
exactly known to any European Government ten years ago,
or if those of the Borku and Wadai tribes in the Southern
Libyan Desert are definitely known to-day. I think such
boundaries, where no acts of the Crown with regard to them
have been involved, must depend on evidence given in the
ordinary way.

Again, it is not indispensable that the information should
have been solicited from the competent Government depart-
ment by the Court itself. In Luther v. Sagor (1) the evidence
put in by the parties included several letters from the Foreign
Office relating to the recognition (if it amounted to recognition),
which His Majesty had been advised to extend to the Soviet
Government, though subsequently the Court made further
inquiries of its own. The letters put in before Roche J.
stated that the Soviet Government had not been recognized
in any way, but that M. Krassin personally was regarded
by the Foreign Office as a foreign representative, who should
be exempt from legal process, though this point was left to
the better judgment of the Courts, and on this evidence he

(1) [1921] 1 K. B. 456, 477.

827

H. L. (E.)
1924

Rae
Durr
DEVELOP-
MENT Co.
ww,
IKKELANTAN
GOVERN-
MENT,

Lord Sumner,

828

HOUSE OF LORDS [1924]

H.L.(E.) held that the Soviet Government was not a sovereign State.

1924
~~

Durr
DEVELOP-

Before the Court of Appeal a further letter from the Foreign
Office was admitted, which stated at a later date that His

ment Co. Majesty's Government did recognize the Soviet Government
Wace de facto, and on this further evidence alone the decision

GOVERN-
MENT.

Lord Sumner.

below was reversed. In both Courts information communi-
cated by the Foreign Office was received as being the proper
material on the question of the status of the Soviet Govern-
ment of Russia, and neither Court refused nor thought itself
bound to refuse to consider such information merely because
it had been obtained by the parties and by them submitted
to the Court. Both Courts proceeded to consider the meaning
and effect of the various communications and, in view of the
fact that, as Roche J. puts it, they were "as clear as the
indeterminate position of affairs in connection with the
subject matter of the communications enabled them to
be" (which to be sure was not luce clarius), I have no
doubt that the construction was a matter for argument
before and for decision by the Courts. As it seems to me,
no such question arises in the present case. Here there is
an explicit statement that the Sultan of Kelantan is an
independent sovereign, and about this there is no possible
ambiguity. To inquire what constitutes independence and
Whether the Treaty cited in the letter does or does not impair

his independence seems to me to be irrelevant. We should

}
q

really question the correctness of the course taken by His
Majesty in regarding this potentate as a sovereign, if we were
to discuss the question, how far the Sultan's sovereignty
is reconcilable with the terms of the Treaty.

The second question which arises, though narrower in
scope, is no less important—namely, the question how far,
if at all, His Highness the Sultan (who really is, and, in my
opinion, ought to have been made, the formal respondent
on the record) has submitted to the jurisdiction of the High
Court. It is raised in this way: first, whether he has in
any way submitted himself to the jurisdiction to enforce the
award as a judgment, which I think is strictly the only issue
to be determined, and second, whether he has in any way

A. C. AND PRIVY COUNCIL.

submitted his property to any process or all processes of
execution of a judgment validly pronounced against him,
either in respect of costs, where he has been the applicant,
or in respect of the award itself. The latter raises a far-
reaching and fundamental question, which, if answered in
favour of the appellants, involves allowing the appeal, and as
I conceive materially alters the law hitherto prevailing on
this subject.

The Sultan's contract to arbitrate in accordance with the
Arbitration Act is not, either in itself or in combination with
anything else in this case, a submission to the jurisdiction
of the High Court. It is not an undertaking given to the
Court itself. It is an agreement inter partes, and no more.
An agreement inter partes that the Court shall be enabled
to do something, which by law it cannot do, is of no avail,
whether it is by statutory rules that the Court is thus
incompetent: British Wagon Co. v. Gray (1), or by a general
rule of the common law, like that which gives or creates a
foreign sovereign's immunity. Ordinary persons can contract
themselves out of the formalities, which the orders and rules
prescribe for proceedings, which the Court has power to
take: Montgomery v. Liebenthal. (2) So too, acting under
statutory authority, the High Court allows service of its
writ, or of notice of its writ as the case may be, on parties
outside the jurisdiction, who, if within it, would have been
personally amenable. Sovereigns, however, are not amenable
at all, except by their own consent, and there is no principle
upon which such consent can be deemed to have been given
short of action taken towards the Court itself, such as is
commonly called a submission to the jurisdiction. It is,
therefore, necessary to find something voluntarily done by
the foreign sovereign in or towards the Court and ,to find in
what is done something that really evinces an intention to
submit. This seems to me to be beyond the limits of
presumption or fiction, for the foundation of the jurisdiction
is not any rule of municipal law but the action of an
independent personage, who himself is beyond its reach.

(1) [1896] 1 Q. B. 35. (2) [1898] 1 Q. B, 487.
A. C. 1924. 3 ook

829

H. L. (E.)
1924

Shs
Durr
DEVELOP-
MENT Co.
Vv.
KrLANTAN
GOVERN-
MENT.

Lord Sumner.

830 HOUSE OF LORDS [1924]

H.L.(E.) |My Lords, I refrain from expressing any opinion on the
1924 question whether or not a foreign sovereign who has sub-
Durr mitted to the jurisdiction by appearing in a proceeding in

ee. a municipal Court thereby submits himself or his property

alike to any of the processes of execution in case judgment should

KELANTAN : :

Govern- be pronounced against him. The question has been discussed,
r=, , ibutak agree with your Lordships in thinking that it does not

Lord Sumner. J mie) 3 5 :

— arise for decision on this occasion. I only desire to say that
in refraining from dealing with the point I am not to be
taken as doubting the reasoning contained in the judgments
in the garnishee proceedings between the present parties.

My Lords, I agree that the appeal should be dismissed.

Lorp Carson. My Lords, I must confess that if it was open
to me to disregard the statements contained in the letter
from the Secretary of State for the Colonies, that " Kelantan
is an independent State and the present Sultan is the present
sovereign ruler thereof,' I would find great difficulty in.
coming to that conclusion of fact, having regard to the terms.
of the documents enclosed in the letter from the Secretary
of State. It is, in my opinion, difficult to find in these docu-
ments the essential attributes of independence and sovereignty
in accordance with the tests laid down by the exponents of
international Jaw. It is, however, unnecessary to pursue
that investigation or to examine the very ample material
put before us in the arguments of Mr. Maugham, as I agree
with your Lordships that the Courts of this country are
bound to take judicial notice of the status of any other
country in accordance with the information afforded to them
by the proper representative of the Crown. As Lord Esher
said in the case of Mighell v. Sultan of Johore (1): "' When
once there is the authoritative certificate of the Queen
through her Minister of State as to the status of another
sovereign, that in the Courts of this country is decisive."
Indeed, it is difficult to see in what other way such a question
could be decided without creating chaos and _ confusion,
the more especially so when we consider that '' many States,

(1) [1894] 1 Q. B. 149, 158.

A. C. AND PRIVY COUNCIL.

regarded as sovereign, do not exercise the right of self-govern-
ment entirely independent of other States, but have their
sovereignty limited and qualified in various degrees, either by
the character of their internal constitution, by stipulations of
unequal treaties of alliance, or by treaties of protection or of
guarantee made by a third Power": Halleck, p. 67. And,
in truth, it is the recognition of the status of the Government
which must be the main element to determine this question ;
the only proper evidence of which can be supplied by the
officer representing the Crown.

The cases upon this subject have been already referred to,
and they are discussed at considerable length in the judgment
of the Master of the Rolls. Treating, therefore, the Govern-
ment of Kelantan as a sovereign State, it follows that prima
facie, at all events, neither the Government nor its property
is subject to the jurisdiction of the Courts of this country.
"The principle to be deduced from all these cases is that,
as a consequence of the absolute independence of every
sovereign authority, and of the international comity which
induces every sovereign state to respect the independence
and dignity of every other sovereign state, each and every
one declines to exercise by means of its Courts any of its
territorial jurisdiction over the person of any sovereign or
ambassador of any other state, or over the public property
of any state which is destined to public use, or over the
property of any ambassador, though such sovereign,
ambassador, or property be within its territory, and, there-
fore, but for the common agreement, subject to its juris-
diction': The Parlement Belge. (1)

It is necessary to note, with a view to subsequent
consideration of the present case, that "the real principle,"

as stated by Lord Esher in the same case, "on which the

exemption of every sovereign from the jurisdiction of every
Court has been deduced is that the exercise of such
jurisdiction would be incompatible with his regal dignity—
that is to say, with his absolute independence of every
superior authority,' and this privilege every sovereign or
(1) 5 P. D. 197, 207, 214.
3 3 L 2

831

H. L. (E.)
1924

ea)
Durr
DEVELOP-
MENT Co.
Vv.
KELANTAN
GOVERN-
MENT.

Lord Carson.

832 HOUSE OF LORDS [1924]

H. L. (E.) sovereign Power has a right to claim. The main contention,
1924 however, of the appellant in the present case is that wherever

Durr a sovereign State has submitted to the jurisdiction of our

mee Courts, it waives its privileges, and must for the purpose
Kutewran OF doing justice be treated in exactly the same way as any
Govern- other litigant. The general proposition upon this subject is,
ceca, a I think, accurately stated in Westlake's Private International
— Law, 6th ed., p. 259, s. 192: "' But a foreign state or person
entitled to the privilege of exterritoriality, bringing an action in
England, will be bound as a private corporation or person
would be bound to do complete justice to the defendant
with regard to the matters comprised in the action, and will
be subject to all cross-actions, counterclaims, defences and
steps of procedure which as between private parties would
be competent to the defendant for the purpose either of
obtaining such complete justice or of defending himself
against the plaintifi's claim," and the editor quotes Paulus,
Digest 5, 1, 22: " Qui non cogitur in aliquo loco judicium
pati, si ipse ibi agat, cogitur excipere actiones et ad eundem

judicem mitti."
It is to be observed that the main principle underlying the
cases referring to the exercise of jurisdiction by our municipal
Courts is that it was necessary that a sovereign Power should
be considered to have waived its privileges and be treated
as other litigants for the purpose of enabling complete justice
to be done between the parties: see King of Spain v.
Hullet (1), and also the judgment of James L.J. in Strowsberg
v. Republic of Costa Rica. (2) It is interesting to note that
in the former case, where the King of Spain unsuccessfully
resisted an application that he should answer a cross-bill
personally and upon oath, the argument used on his behalf
was that contended for by Mr. Upjohn as one of the reasons
for resisting the grant of execution—namely: "It is
impossible,' said the Attorney-General, "for the appellant
to do so consistently with his independent sovereign
character, according to the principles of the law of nations,
as practised between all European states, and his admitted

(1) 1 Cl. & F. 383, 345, (2) 44 L. T. 199.

}

A.C. AND PRIVY COUNCIL.

relation to this country as head of the kingdom of Spain."
It is in applying this principle of equal treatment that the
sovereign submitting to the jurisdiction has been ordered
to give security for costs and also security for damages: see
The Newbattle (1), and it is difficult to find any principle
on which such orders.should be permitted if the sovereign
was not liable to the ordinary results flowing from the judg-
ment and execution. Indeed, so far as I can ascertain from
such researches as I have been able to make, there is no
authority which limits the power of the Courts in this country,
when once a sovereign has submitted to its jurisdiction, to
merely decide questions at issue and not to make a judgment
effective by the issue of execution; the result of any such
decision would have to make the decrees of our Courts sterile
and ineffective. It is true that in The Newbatile Brett M.R.
stated the proposition in this way (2): 'It has always, however,
been held that if a sovereign prince invokes the jurisdiction
of the Court as a plaintiff, the Court may make all proper
orders against him. The Court has never hesitated to exer-
cise its powers against a foreign Government to this extent.
It is another question as to what may be the result of an
application for execution by seizure of the plaintiffs' ship if
the judgment should be against the plaintiffs,' but that is
not a decision that the judgment of the Court could not be
enforced, and rather suggests that there may be questions as
to the nature of the particular property which may be taken
in execution.

The real crux, however, is as to whether the Government of
Kelantan has waived its privileges, and if so, how far, under
the circumstances disclosed in the present case. The deed
of cancellation under which the arbitration was held
contained in cl. 21 a submission to arbitration by the
Government of Kelantan, which provides that "this shall be
deemed a submission to arbitration within the Arbitration
Act 1889 or any statutory modification or re-enactment
thereof for the time being in force the provisions whereof
shall apply so far as applicable." Now the Arbitration Act

(1) 10 P. D. 33. (2) 10 P. D. 35,

833

H. L. (E.)

1924
—
DuFrF
DEVELOP-
MENT Co.
is
KELANTAN
GOvVERN-
MENT.

Lord Carson.

834

H. L. (E.)
1924

Kw
Durr
DEVELOP-
MENT Co.

v.
KELANTAN
GOVERN-
MENT.

Lord Carson,

HOUSE OF LORDS [1924]

of 1889, under the heading of "' References by consent out of
Court," by the first section provides as follows: '"' A sub-
mission, unless a contrary intention is expressed therein,
shall be irrevocable, except by leave of the Court or a judge,
and shall have the same effect in all respects as if it had
been made an order of Court."

The jurisdiction therefore of the Court to see that the
submission is duly carried out and the machinery for making
it effective attaches from the moment of the submission,
and a refusal to comply with an award made on a submis-
sion in writing is a contempt of Court and might in
certain cases have been punished by attachment. I fail to
see how the principles to which J have already referred of
doing complete justice where a sovereign has waived his
privileges can be carried out if it is to be held, as it has been
held apparently in this case, that at each step when it is
necessary to invoke the assistance of the Court the sovereign
Power can claim such assistance, but can when it is demanded ~
by the other party raise as a defence that he is protected by
his sovereignty. Take, for instance, the present case; the
arbitration was duly held in pursuance of the submission and
the sovereign Power duly appeared as a party, and when
an award was made against him, claimed the right to appeal
to the Courts and finally to your Lordships' House to set
aside the award under s. 11, and no doubt if he had been
successful would have claimed and would have been held
entitled to levy execution against the appellants for the
costs of such award. Similarly, if the award had been in
his favour, he would have been entitled to claim, as the
appellants now claim, under cl. 12 to enforce the award
"in the same manner as a judgment or order to the same
effect."

My Lords, under such circumstances as these, how can it
be said that, when the act of the sovereign Power has invoked
the benefits of the procedure devised by the laws of this
country for enforcing its claims or settling its disputes,
"international comity which induces every sovereign State
to respect the independence and dignity of every other

' ASO. AND PRIVY COUNCIL.

2?

sovereign State " requires that our Courts should lend them-
selves to such palpable injustice as to refuse a mutual relief
to both parties concerned ? or how can it be suggested that
under such circumstances we would be acting upon the
principles laid down in the cases I have already quoted of
doing complete justice between the parties if we refused the
sf application of the appellants? I do not myself see any
difference in principle between the present case and those in
which cross-actions were allowed in order that both sides
should receive equal justice, nor do I think we are entitled
to consider each step taken for the purpose of carrying out
the proceedings necessary for making the award effective
as a separate invocation of the jurisdiction of the Court
which required a separate submission by the sovereign State
to give it jurisdiction; rather should we consider that the
Government of Kelantan by agreeing to the submission which
became an order of Court and taking the course they did,
are bound to treat the matter as one proceeding, in which
the sovereign State has waived its privileges and in which
justice can alone be done by making the law applicable
equally to both parties.
In my opinion, this appeal should be allowed.

Order of the Court of Appeal affirmed, and appeal
dismissed with costs.

Lords' Journals, April 10, 1924.