Democratic Republic of the Congo v FG Hemisphere: why absolute immunity should apply but a reference was unnecessary

Abstract

In this Comment, the author advances the following arguments: (1) the law of state immunity does not fall within the common law act of state doctrine as enshrined in Art 19 of the Basic Law; (2) as a matter of comity, even though the determination of state of immunity is not an act of state, the judiciary and the executive should speak with one voice on foreign affairs, and therefore the HKSAR courts should observe the doctrine of absolute immunity; and (3) the CFA does not have to refer the interpretation of Arts 13 and 19 to the SCNPC as the Court would not need to rely or apply either Arts 13 or 19 in resolving this dispute as the 'one voice' principle on international affairs follows from the application of another common law principle and not the common law act of state doctrine encapsulated under Art 19.