The Doctrine of Foreign Acts of State Clarified: Abram and Others v UEFA [2025] EWHC 483 (KB)

On 28^th May 2022, eight hundred supporters of Liverpool Football Club attended the UEFA Champions League Final at the Stade de France in Paris. The event descended into chaos, during the course of which it was alleged that they sustained injuries as a result of being crushed in the melee, sprayed with teargas and pepper spray by the French police, and assaulted by members of the French public.

UEFA disputed the court’s jurisdiction. By an application dated 30^th November 2023, they invited the court to dismiss the claims on the grounds that it did not have jurisdiction over them or should decline jurisdiction or that the claims were non-justiciable.

The central question was whether Defendants could rely upon the common law doctrine of foreign acts of state to deliver a “forensic knock-out blow” to defeat the claims before they could proceed any further. The Claimants contended that, prior to any Defence being served, it could not confidently be held to be engaged and that even if it could be, the two exceptions or limitations could apply.

The matter was heard by Mr. Justice Turner. Counsel for the Claimants were Matthew Chapman KC of Deka Chambers, and Alistair Mackenzie of 2 Temple Gardens. The Claimants were instructed by Clare Campbell, Jill Paterson, and Colin Murphy of Leigh Day. The application was dismissed.

How to challenge jurisdiction

CPR 11 provides the procedure for disputing the court’s jurisdiction. The principles of such jurisdiction applications are as follows:

1. The scale of the exercise involved in resolving the relevant issues at this stage ought not to exceed the boundaries of what is proportionate.
2. The adjudication of an application under CPR 11 is not the equivalent of the determination of a preliminary issue. No defence has been served, disclosure has not been given, and the evidential material available to the court and the parties is limited. The analytical focus should be on the Particulars of Claim, save where the allegations of fact are demonstrably untrue or unsupportable.
3. It may be more appropriate that the application of the Doctrine should be considered not at the stage of an initial jurisdictional challenge, but only after the issues in the action have been properly defined on the pleadings.
4. Whether the material available to the court on an application under CPR 11 and founded on the Doctrine is such that it remains arguable that it may not apply on one or more grounds, then the issue may properly be left to be determined at trial.

Applicable Law

A preliminary issue arose as to the applicable law of the claim. It transpired that some of the Claimants had purchased tickets from the UEFA online ticket portal, and others had bought them directly from Liverpool F.C. In light of this, the Claimants raised that claims in tort would be subject to French law (as would claims in contract arising out of the tickets bought from UEFA). However, claims which had been brought directly from Liverpool F.C. would impose an English contractual duty with regard to French health and safety laws.

The Doctrine of Foreign Acts of State (“the Doctrine”)

In Deutsche Bank AG London Branch v Receivers Appointed [2023] AC 156, Lord Lloyd-Jones identified the existence of a rule that “courts in this jurisdiction will not adjudicate or sit in judgement on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state.”

The Defendants submitted that acts done in the exercise of foreign state power or authority will engage the doctrine irrespective of the level of executive seniority of the instigators or of their constitutional or organisational proximity to central government. Alternatively, the Defendants contended that the circumstances of these cases involved decisions relating to a major sporting event that were made at the highest levels to which the Doctrine could apply.

Judgment

What amounts to a foreign act of state?

The Defendants’ primary case was that the acts committed by low-level state officials (in this case the French police officers) engaged the operation of the Doctrine. They identified two cases by which low-level officials are said to have engaged the operation of the Doctrine. The first was an American case (Underhill v Hernandez), which Mr. Justice Turner distinguished on the basis that (a) the judgment could not be construed to suggest that the actions of individual soldiers would have fallen under the doctrine, and (b) cautious had to be exercised in attempting to import decisions of the United States into English law following the warning in Belhaj v Straw [2017] AC 964, [134].

The second case relied upon by the Defendants was Belhaj, in which it was alleged that the defendants were complicit in aiding in a covert renditions programme operated by the US government and a network of ‘black sites’ at which detainees were held incommunicado and tortured. Mr. Justice Turner distinguished this case on the basis that the court was not looking in a vacuum at the acts of individuals, but in the context of such individuals allegedly acting in the execution of state power.

Mr. Justice Turner usefully gave a review of authorities to identify the role characteristically played by acts of high executive authority which lie behind the application of the doctrine:

1. Underhill v Hernandez 168 U.S. 250 (1897). The act was of a revolutionary general in ordering the detention of the plaintiff.
2. Yukos Capital Sarl v OJSC Rosneft Oil Co [2014] QB 458. The act relied upon was the decision of the Russian courts to set aside an arbitration award made in favour of the Claimants,
3. Belhaj v Straw [2017] AC 964. The act alleged was the detention of the Claimants procured by common design between (among others) the Foreign Office and the Home Office on one hand and the Libyan and US authorities on the other.
4. Reliance Industries Ltd v Union of India [2018] EWHC 822. The act comprised the withholding of government nominees of the price of oil and gas pursuant to notices to do so issued on the authority of an Office Memorandum issued by the Ministry of Petroleum and Natural Gas.
5. Mars Capital Finance Ltd v Hussein [2021] EWHC 2416 (Ch). The challenge was to the validity and effectiveness of the Decision issued by the Resolution Authority established under the Act of the Cyprus Parliament.
6. Deutsche Bank AG London Branch v Receivers Appointed [2023] AC 156. The act was the appointment of the board of the Bank by the exercise of presidential authority.

Exceptions to the Doctrine

Mr. Justice Turner went further and accepted that some aspects of the conduct of the French government and other listed public bodies through its higher officials may amount to acts of state. He accepted that there was a difficulty in grappling with this issue at this stage because of the task of determining which acts do engage the Doctrine given the incomplete state of the pleadings and evidence.

In light of this, he made “observations” in hope that it would assist the parties and the court in the event the issue was to be revisited later in the proceedings.

The First Exception

The first exception is whether the acts relied upon have occurred without the need for the court to inquire into their legal effectiveness. This is sometimes referred to as the Kirkpatrick exception following the decision of the United States Supreme Court in W. S. Kirkpatrick & Co Inc v Environmental Tectonics Corporations (1990) 493 US 400. In Yukos Capital, Lord Justice Rix noted that:

“What the Kirkpatrick case is ultimately about, however, is the distinction between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to inquire into them for the purpose of adjudicating upon their legal effectiveness, including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground, for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it was unfair or expropriatory or discriminatory

Mr. Justice Turner indicated that it was arguable that none of the acts relied upon or likely to be relied upon by the defendants as constituting acts of state under their secondary case are liable to be challenged on the basis that they are invalid. For example:

1. If the Safety and Security Guarantee were to be guaranteed as an act of the state, then it may be argued that the issues likely to be raised by the defendants would not seek to challenge the validity of any guarantee. It is the effectiveness of the guarantee which is liable to be relied upon.
2. With respect that the incident caused “serious damage to the issue of France” (as suggested in the 10^th June report of the accident), it is noted that the act of state doctrine does not “establish an exception for cases and controversies that may embarrass foreign governments”.  
3. The Claimants pleaded the failure of the Defendants to comply with or have regard to the Saint-Dennis Convention. This Convention was intended to establish an integrated approach to safety, security, and service at football matches and other sports events. Again, it was not clear how the determination of the issues in this matter would amount to a challenge to the validity of such an act of ratification.

The Second Exception

The second exception applies where the challenges to foreign acts of state are merely ancillary or by way of collateral aspersion. Mr. Justice Turner accepted that, as a matter of English law, the limits of the scope of the doctrine and the application of the first exception were sufficient to undermine the Defendants’ jurisdiction application. In the alternative, he went on to consider whether the expert evidence under French law would have a material impact on his conclusions.

He determined that it would be inappropriate for him to resolve any differences between the experts for the following reasons:

1. It would be inappropriate to attempt to resolve differences between experts in French law at this stage. The persisting chance that the Claimants’ experts’ view will prevail must preclude the court from proceeding on the assumption that the Defendants’ experts’ opinion must apply to determination of this application.
2. Whichever expert view may prevail, neither would affect his adjudication upon the first issue as to the scope of the Doctrine on the material presently available to the court.
3. Even if the evidence of the Defendants’ expert were to prevail, it would not preclude the possible applications of either of the exceptions of the Doctrine.

Conclusion

There are two points which practitioners should take away from this application. First, the application of doctrine of state is limited to those involving high-ranking officials and high matters of state. The mere fact that a state employee of a foreign nation has committed a tort does not mean that the doctrine takes effect. It would mean, for example, that if a French police car collided with English pedestrians in France, the English pedestrians would be vulnerable to the doctrine.

Second, applications under CPR 11 are not the equivalent of determining the preliminary issue. The evidence which the court will have will be limited. Challenges based on allegations in the Particulars of Claim or the Claimants’ expert evidence will only likely be sustainable if either the pleadings or evidence is unarguably wrong.