Updated: Sunday June 05, 2016/AlAhad
Sha'ban 29, 1437/Ravivara
Jyaistha 15, 1938, at 04:18:48 AM
The State Immunity Ordinance, 1981
ORDINANCE VI OF 1981
[11th March 1981]
An Ordinance to amend and
consolidate the law relating to the immunity of States from the jurisdiction of
Courts.
WHEREAS it is expedient to
amend and consolidate the law relating to the immunity of States from the
jurisdiction of Courts;
AND WHEREAS the President
is satisfied that circumstances exist which render it necessary to take
immediate action;
NOW, THEREFORE, in
pursuance of the Proclamation of the fifth day of July 1977, read with the Laws
(Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977), and in
exercise of all powers enabling him in that behalf, the President is pleased to
make and promulgate the following Ordinance:---
1. Short title, extent and
commencement.‑(1) This Ordinance maybe called the State Immunity
Ordinance, 1981.
(2) It extends to the whole
of
(3) It shall come into
force at once.
2. Interpretation.___In
this Ordinance, “Court” includes any tribunal or body exercising judicial
functions.
IMMUNITY FROM JURISDICTION
3. General immunity from
jurisdiction.___ (1) A State is immune from the
jurisdiction of the Courts of Pakistan except as hereinafter provided.
EXCEPTIONS FROM IMMUNITY
4. Submission to
jurisdiction.___ (1) A State is not immune as
respects proceedings in respect of which it has submitted to jurisdiction.
(2) A State may submit to
jurisdiction after the dispute giving rise to the proceedings has arisen or by
a prior agreement; but a provision in any agreement that it is to be governed
by the law of Pakistan shall not be deemed to be a submission.
Explanation.___In
this subsection and in sub-section (3) of section 14, “agreement” includes a
treaty, convention or other international agreement.
(3) A State shall be deemed
to have submitted,---
(a) if it has instituted the
proceedings; or
(b) subject to sub-section (4) it has intervened or taken any
step in the proceedings.
(4) Clause (b) of
sub-section (3) does not apply,---
(a) to intervention or any step taken for the purpose only
of,---
(i) claiming immunity; or
(ii) asserting an interest in property in circumstances
such that the State would have been entitled to immunity if the proceedings had
been brought against it; or
(b) to any step taken by the State in ignorance of the facts
entitling it to immunity if those facts could not reasonably have been
ascertained and immunity is claimed as soon as reasonably practicable.
(5) A submission in respect
of any proceedings extends to any appears but not to any counter claim unless
it arises out of the same legal relationship or facts as the claim.
(6) The head of a State’s
diplomatic mission in Pakistan, or the person for the time being performing his
functions, shall be deemed to have authority to submit on behalf of the State
in respect of any proceedings; and any person who has entered into a contract
on behalf of and with the authority of a State shall be deemed to have
authority to submit on its behalf in respect of proceedings arising out of the
contract.
5. Commercial
transactions and contracts to be performed in
(a) a commercial transaction entered into by
the State; or
(b) an obligation of the State which by virtue of a contract,
which may or may not be a commercial transaction, falls to be performed wholly
or partly in Pakistan.
(2) Sub-section (1) does not
apply to a contract of employment a between a State and an individual or if the
parties to the dispute are States or have otherwise agreed in writing; and
clause (b) of that sub-section does not apply if the contract, not being a
commercial transaction, was made in the territory of the State concerned and
the obligation in question is governed by its administrative law.
(3) In this section “commercial
transaction” means___
(a) any contract for the supply of goods or services;
(b) any loan or other transaction for the provision of finance
and any guarantee or indemnity in respect of any such transaction or of any
other financial obligation; and
(c) any other transaction or activity, whether of a commercial,
industrial, financial, professional or other similar character, into which a
State enters or in which it engages otherwise than in the exercise of its
sovereign authority.
6.
Contracts of employment.___ (1) A State is not immune as
respects proceedings relating to a contract of employment between a State and
an individual where the contract was made, or the work is to be wholly or
partly performed in Pakistan;
Explanation.___In this subsection, “proceedings relating
to a contract of employment” includes proceedings between the parties to such a
contract in respect of any statutory rights or duties to which they are
entitled or subject as employer or employee.
(2) Subject to sub-sections
(3) and (4), sub-section (1) does not apply if,---
(a) at the time when the proceedings are brought the individual
is a national of the State concerned; or
(b) at the time when the contract was made the individual was
neither a citizen of
(c) the parties, to the contract have otherwise agreed in
writing.
(3) Where the work is for
an office, agency or establishment maintained by the State in Pakistan for
commercial purposes, clauses (a) and (b) of sub-section (2) do not exclude the
application of sub-section (1) unless the individual was, at the time when the
contract was made, habitually resident in that State.
(4) Clause (c) of
sub-section (2) does not exclude the application of sub-section (1) where the
law of
7. Ownership, possession
and use of property.___ (1) A State is not immune as
respects proceedings relating to,---
(a) any interest of the State in, or its possession or use of,
immovable property in
(b) any obligation of the State arising out of its interest in,
or its possession or use of, any such property.
(2) A State is not immune
as respects proceedings relating to any interest of the State in movable or
immovable property, being an interest arising by way of succession, gift
or bona vacantia.
(3) The fact that a State
has or claims an interest in any property shall not preclude any Court from
exercising in respect of such property any Jurisdiction relating to the
estates of deceased persons or persons of unsound mind or to insolvency, the
winding up of companies or the administration of trusts.
(a)
which is in the possession of a State; or
(b) in which a State claims an interest,
if the State would not have
been immune had the proceedings been brought against it or, in a case referred
to in clause (b), if the claim is neither admitted nor supported by prima facie
evidence.
8. Patents, trade marks,
etc. A State is not
immune as respects proceedings relating to,---
(a) any patent, trade mark, design or plant
breeders’ rights belonging to State which are registered or protected in
Pakistan or for which the state has applied in Pakistan;
(b) an alleged infringement by the State in
(c) the right to use a trade or business name in
9. Membership of bodies
corporate, etc.___ (1) A State is not immune as
respects proceedings relating to its membership of a body corporate, an unincorporated
body or a partnership which,---
(a) has members other than States; and
(b) is incorporated or constituted under the law of Pakistan or
is controlled from, or has its principal place of business in, Pakistan, being
proceedings arising between the State and the body or its other members or, as
the case may be, between the State and the other partners.
(2) Sub-section (1) does
not apply if provision to the contrary has been made by an agreement in writing
between the parties to the dispute or by the constitution or other instrument
establishing or regulating the body or partnership in question.
10. Arbitrations.___ (1) Where a State has agreed in
writing to submit a dispute which has arisen, or may arise, to arbitration, the
State is not immune as respects proceedings in the courts of
(2) Sub-section (1) has
effect subject to the provisions of the arbitration agreement and does not
apply to an arbitration agreement between States.
11. Ships used for
commercial purposes.___ (1) The succeeding provisions of
this section apply to,---
(a) Admiralty proceedings; and
(b) proceedings on any claim which could be made the subject of
Admiralty proceedings.
(2) A State is not immune
as respects,---
(a) an action in rem against a ship belonging to it; or
(b) an action in personam for enforcing a claim in connection with
such a ship; if, at the time when the cause of action arose, the ship was in
use or intended for use for commercial purposes.
(3) Where an action in rem
is brought against a ship belonging to a State for enforcing a claim in
connection with another ship belonging to that State, clause (a) of sub-section
(2) does not apply as respects the first‑mentioned ship unless, at the
time when the cause of action relating to the other ship arose, both ships were
in use or intended for use for commercial purposes.
(4) A
State is not immune as respects,---
(a) an action in rem against a cargo belonging
to that State if both the cargo and the ship carrying it were, at the time when
the cause of action arose, in use or intended for use for commercial purposes;
.or
(b) an action in personam for enforcing a
claim in connection with such a cargo if the ship carrying it was then in use
or intended for use as aforesaid.
(5) In the foregoing
provisions references to a ship or cargo belonging to a State include
references to a ship or cargo in its possession or control or in which it
claims an interest; and, subject to sub-section (4), sub-section (2) . applies
to property other than a ship as it applies to a ship.
(6) Sections 5 and 6 do not
apply to proceedings of the nature mentioned in sub-section (1) if the State in
question is a party to the Brussels Convention and the claim relates to the
operation of a ship owned or operated by that State, the carriage of cargo or
passengers on any such ship or the carriage of cargo owned by that State on any
other ship.
Explanation.___In this section, “Brussels Convention”
means the International Convention for the Unification of Certain Rules
Concerning the Immunity of State‑owned Ships signed in
12. Value added tax,
customs‑duties, etc. A State is not immune as respects proceedings relating to its
liability for,---
(a) value added tax, any duty of customs or excise or any
agricultural levy; or
(b) rates in respect of premises occupied by
it for commercial purposes.
PROCEDURE
13. Service of process
and judgment in default of appearance.___ (1) Any notice or other document
required to be served for instituting proceedings against a State shall be
served by being transmitted through the Ministry of Foreign Affairs or
(2) Any proceedings in
Court shall not commence earlier than two months after the date on which the
notice or document is received as aforesaid.
(3) A State which appears
in proceedings cannot thereafter object that sub-section (1) has not been
complied with as respects those proceedings.
(4) No judgment in default of
appearance shall be given against a State except on proof that sub-section (1)
has been complied with and that the time for the commencement of proceedings
specified in sub-section (2) has elapsed.
(5) A
copy of any judgment given against a State in default of' appearance shall be
transmitted through the Ministry of Foreign Affairs of Pakistan to the Ministry
of Foreign Affairs of the State and the time for applying to have the judgment
set aside shall begin to run two months after the date on which the copy of the
judgment is received at the latter Ministry.
(6) Sub-section (1) does
not prevent the service of a notice or other document in any manner to which
the State agreed and sub-sections (2) and (4) do dot apply where service is
effected in any such manner.
(7) The preceding
provisions of this section shall not be construed as applying to proceedings
against the State by way of a counter‑claim or to an action in rem.
14. Other procedural
privileges.___ (1) No penalty by way of committal
to prison or fine shall be imposed in respect of any failure or refusal by or
on behalf of a State to disclose or produce any document or information for the
purposes of proceedings to which it is a party.
(2) Subject to sub-sections
(3) and (4),---
(a) relief shall not be given against a State by way of
injunction or order for specific performance or for the recovery of land or
other property; and
(b) the property of a State, not being property which is for the
time being in use or intended for use for commercial purposes, shall not be
subject to any process for the enforcement of a judgment or arbitration award
or, in an action in rem, for its arrest, detention or sale.
(3) Sub-section (2) does
not prevent the giving of any relief or the issue of any process with the
written consent of the State concerned and any such consent, which may be
contained in a prior agreement, may be expressed so as to apply to a limited
extent or generally:---
Provided that a provision
merely submitting to the jurisdiction of the courts shall not be deemed to be a
consent for the purposes of this sub-section.
(4) The head of a State’s
diplomatic mission in Pakistan, or the person for the time being performing his
functions, shall be deemed to have authority to give on behalf of the State any
such consent as is mentioned in sub-section (3) and, for the purposes of
clause (b) of sub-section (2), his certificate that any property is not in use or
intended for use by or on behalf of the State for commercial purposes shall be
accepted as sufficient evidence of that fact unless the contrary is proved.
SUPPLEMENTARY PROVISIONS
15. States entitled to
immunities and privileges.___ (1) The immunities and privileges
conferred by this Act apply to any foreign State; and references to State
include references to,---
(a) the sovereign or other head of that State in his public
capacity;
(b) the government of that State; and
(c) any department of that government
but not to any entity,
hereinafter referred to as a “separate entity”, which is distinct from the
executive organs of the government of the State and capable of suing or being
sued.
(2) A separate entity is
immune from the jurisdiction of the courts of
(a) the proceedings relate to anything done by it in the
exercise of sovereign authority; and
(b) the circumstances are such that a State would have been so
immune.
(3) If a separate entity,
not being a State’s central bank or other monetary authority, submits to the
jurisdiction in respect of proceedings in the case of which it is entitled to
immunity by virtue of sub-section (2) of this section, the provisions of
sub-sections (1) to (3) of section 14 shall apply to it in respect of those
proceedings as if reference to a State were references to that entity.
(4) Property of a State’s
central bank or other monetary authority shall not be regarded for the purposes
of sub-section (3) of section 14 as in use or intended for use for commercial
purposes; and where any such bank or authority is a separate entity
sub-sections (1) and (2) of that section shall apply to it as if references to
a State were references to the bank or authority.
(5) Section 13 applies to
proceedings against the constituent territories of a
(6) Where the provisions of
this Ordinance do not apply to a constituent territory by virtue of a
notification under sub-section (5), the provisions of sub-sections (2) and (3)
shall apply to it as if it were a separate entity.
16. Restriction and
extension of immunities and privileges.___ (1) If it appears to the Federal
Government that the immunities and privileges conferred by this Ordinance in
relation to any State,---
(a) exceed those accorded by the law of that State in relation
to
(b) are less than those required by any
treaty, conventional or other inter national agreement to which that State and
the Federal Government may,
by notification in the official Gazette provide for restricting or, as the case
may be, extending those immunities and privileges to such extent as it may deem
fit.
17. Savings, etc.___ (1) This Ordinance does not affect
any immunity or privilege conferred by the Diplomatic and Consular Privileges
Act, 1972 (1X of 1972); and
(a) section 6 does not apply to proceedings concerning the
employment of the members of a mission within the meaning of the Convention set
out in the First Schedule to the said Act of 1972 or of the members of a
consular post within the meaning of the Convention set out in the Second
Schedule to that Act;
(b) sub-section (1) of section 7 does
not apply to proceedings concerning a State’s title to, or its possession of,
property used for the purposes of a diplomatic mission.
(2) This Ordinance does not
apply to,---
(a) proceedings relating to anything done by or in relation to
the armed forces of a State while present in
(b) criminal proceedings; or
(c) proceedings relating to taxation other than those mentioned
in section 12.
18. Proof as to certain
matters. A certificate
under the hand of a Secretary to the Government of Pakistan shall be conclusive
evidence on any question,---
(a) whether any country is a State for the purposes of this
Ordinance, whether any territory is a constituent territory of a Federal State
for those purposes or as to the person or persons to be regarded for those
purposes as the head or Government of a State; or
(b) whether, and if so when, a document has
been served or received as mentioned in sub-section (1) or sub-section (5) of
section 13.
19. Repeal. Sections 86 and 87 of the Code of Civil
Procedure, 1908 (Act V of 1908) are hereby repealed.
Go to Index
| LL. B. – I | LL. B. – II
| LL. B. – III | LL. B.
Directory | Home