Biocare v Gcamines and Republic of Zaire

Date16 mars 1989
CourtCivil Tribunal (Belgium)
Belgium, Civil Court of Brussels (Second Chamber).

(Thiry, President)

SA Biocare
Gcamines (Zaire) and Republic of Zaire

State immunity Jurisdictional immunity Expropriation Foreign company Claim against foreign State for damages Policy of Zairianization operated by State of Zaire Claim in Belgian courts to recover compensation payable under the law of Zaire Whether State of Zaire entitled to invoke immunity from jurisdiction Whether Zairianization of foreign-owned companies constituting an act of sovereignty Whether recourse to procedure established by Zairian Government for recovery of compensation constituting an ordinary commercial act The law of Belgium

Summary: The facts:The plaintiff company Biocare brought a claim against a Zairian State-owned company, Gcamines, for compensation payable under the law of Zaire for the loss of its shareholding in a company incorporated in Zaire, which had been expropriated and transferred to Gcamines pursuant to the Zairianization decree, adopted by the President of Zaire in 1973. At first instance, it was held that the Belgian courts had no jurisdiction over the claim. On appeal, the plaintiff company argued that, since the defendant company had an office in Belgium, the debt could be claimed there. The State of Zaire, intervening, argued that it was entitled to jurisdictional immunity from the claim.

Held:The appeal was dismissed.

(1) While proceedings could be instituted against foreign companies in Belgium if they had established a registered office or subsidiary there, such proceedings could not be brought where, as here, they had no connection with operations carried out by the company concerned in Belgium.

(2) The Zairianization decree was unquestionably an act of sovereignty to which jurisdictional immunity applied. However, the proceedings before the Belgian courts did not challenge the principle of Zairianization but rather concerned the procedure adopted by the agency established by the Government of Zaire to recover compensation on behalf of those individuals and bodies whose property had been expropriated. The recourse to that procedure, which could be used by private individuals, constituted an ordinary commercial act beyond the scope of jurisdictional immunity, which only covered those acts relating to the political life of the State.

The following is the text of the relevant part of the judgment of the Court:

The judge at first instance held that he had no jurisdiction and consequently no...

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