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Feb 13, 2017

Andrew Marshalleck’s International Immunity Primer

Andrew Marshalleck

Senior Counsel Andrew Marshalleck has been advising the People’s United Party as its legal adviser on the question of the Central Bank (International Immunities) Act and Crown Proceedings (Amendment) Act, passed in the National Assembly at the end of January. The former was intended as a further shield to the national reserves from the assault of the arbitral award holders, particularly B.C.B. Holdings. The laws got unanimous approval, but further research by Marshalleck has found that they were not entirely necessary. Marshalleck explained why.


Andrew Marshalleck, Legal Adviser, P.U.P.

“I think in both instances what you are dealing with is the extent to which persons to whom Government are indebted can enforce collection of the monies owing from Government. And you have heard the term sovereign immunities and it’s been tossed around, and I think tht’s the source of the confusion – because there are different types of sovereign immunities. There is immunity from jurisdiction, which means one state can’t be sued in the courts of another state; and there’s also immunities from enforcements of judgments had from different jurisdictions, and that’s what the two recent pieces of legislation deal with. When you agree to submit a dispute to arbitration; to international arbitration, you waive sovereign immunity to jurisdiction – it means you can be sued, legal proceedings can be taken in foreign courts just as it has in regard to the arbitral award. When you look at the bondholder documentation, the sovereign immunity referred to there is the immunity from jurisdiction; those are being waived and it was waived in the case of the arbitral awards in relation to the Ashcroft group as well. Where you are in the latter case is asserting immunities from execution of the judgments and those are a different set of immunities, and I think it is the difference between those that have caused some confusion.”



“So then, was there any need for the legislation that the Government passed in the House and in the Senate to protect the Central Bank from [an attempt to attach its] foreign reserves, when in fact, those could not be touched under any circumstances, and what the so-called Ashcroft Alliance is seeking, is attachment to results of any commercial transactions in the U.S.?”


Andrew Marshalleck

“Where you are is immunities from enforcement, from execution of judgments, and it’s always been the case, the starting point is to recognize that the laws that govern execution of a judgment are the laws of the place where the judgment is sought to be executed; so the relevant laws would be the laws of the U.S., not the laws of Belize, that’s the first thing. So you can’t pass a law in Belize to dictate what happens in the U.S., it doesn’t work that way. The change in the law in Belize would only be relevant to the extent that the laws in the U.S. allow some reference to it for the determination of one factor or another; but the simple position is and the simple fact of the matter is that the laws of the U.S. already confer an absolute immunity to the reserves to the resources of the Central Bank, so that there was never any risk of execution against the reserves.”

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