Ali Mahmoud Hassan Mohamed v (1) Abdulmagid Breish (2) Hussein Mohamed Hussein Abdlmora (3) Mark James Shaw & Shane Michael Crooks (4) Libyan Investment Authority (2019)
The court declared in the context of a dispute over the chairmanship of the Libyan Investment Authority that the question of which body represented the executive authority and government of Libya fell to be determined, if it arose before the English court, under English law, and that the executive authority and government of Libya had been represented since April 2017 by the Government of National Accord and the Presidency Council.
The court was required to determine preliminary issues as to which body was recognised by the UK government as the government of Libya and whether English law applied to determine that question.
The proceedings arose out of rival claims to the chairmanship of Libya's sovereign wealth fund, the Libyan Investment Authority, following the Libyan revolution in 2011. The LIA was created in 2010 under Libyan law no.13 which provided for the LIA to have a board of trustees with power to appoint a board of directors, including its chairman. After the revolution, rival contenders asserted that they were the duly appointed chairman of the LIA, capable among other things of giving instructions in relation to certain litigation being carried on in the LIA's name in the English courts. The court made receivership orders to enable the litigation to be carried on. It also directed the bringing of a claim by a rival claimant against the first defendant (B) who claimed to have been appointed as chairman of the LIA. Those proceedings were adjourned because at that time the court could not be satisfied that the UK government recognised as legitimate either of the factions claiming to govern Libya. The claimant's case was a continuation of those proceedings. He claimed that since April 2017 the UK government had recognised the Government of National Accord (GNA) in Libya, that references in law no.13 to the General People's Committee, which no longer existed, were to be understood as referring to the government of the day in Libya, that the GNA as the government of Libya had appointed a board of trustees under law no.13 which had appointed him as chairman of the LIA, and that the English court should declare that he had been validly appointed and discharge the receivership orders. Preliminary issues were directed as to which body was recognised by the UK government as the government of Libya and whether that matter was to be determined as a matter of English law.
Recognition of GNA - Questions of whether a state or a head of state or a government of a state was recognised were matters within the exclusive jurisdiction of the Foreign and Commonwealth Office and the information provided had to be acted on by the court as a fact of state as the UK had to speak with one voice on the question, Spain v Owners of the Arantzazu Mendi  A.C. 256 followed and Al Attiya v Bin-Jassim Bin-Jaber Al Thani  EWHC 212 (QB) applied. Where the UK government did not expressly inform the court that it recognised a foreign government, the court was left to infer the position of the UK government from its actions, Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary)  Q.B. 54 applied. The FCO had in substance provided to the court direct and unequivocal notification that the UK government since April 2017 had recognised the GNA as the government of Libya (see paras 32-42, 45 of judgment).
Application of English law - The question, who was the government of a foreign state, if it arose before an English court, was necessarily and always governed by English law, because the question of recognition was a matter for the executive and not the judiciary. It was not for the courts to second-guess the executive, Sierra Leone Telecommunications Co Ltd v Barclays Bank Plc  2 All E.R. 821 considered. The question of which body represented or had at any material time represented the executive authority and government of Libya fell to be determined, if it arose before the English court, under English law (paras 36, 45).
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