Case law Developments in PIL

Flatow v. Iran – French Supreme Court Rules on Sovereign Immunity in Exequatur Proceedings

In a judgment of 28 June 2023, the French Supreme Court for Private and Criminal Matters (Cour de cassation) ruled that foreign states may rely on their immunity from suit in exequatur proceedings.

As a result, the court confirmed that French courts could dismiss proceedings to declare enforceable a US judgment which had retained jurisdiction over and ruled against Iran on the ground that Iran benefited from an immunity from suit in France.


In Flatow v. the Islamic Republic of Iran et alii (999 F. Supp. 1 (D.D.C. 1999), see also this report of the NY Times), the US District Court for the District of Columbia ordered the Republic of Iran and other Iranian defendants to pay various members of the family of Alisa Flatow over USD 40 Million in compensatory damages and over USD 225 Million in punitive damages.

Alisa Michelle Flatow was a twenty-year-old Brandeis University student. For the 1995 spring semester, she arranged for and participated in an independent foreign study program in Israel.

The Man who Sued IranWhile in Israel, she communicated with her father (picture), to ask whether she could travel to a community on the Mediterranean Sea with friends. He reviewed their itinerary with her, and as he believed that the Israeli government would not provide civilian passenger bus service unless it were safe to do so and he gave her permission to travel in Gaza.  On April 9, 1995, she took the number 36 Egged bus, which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community. At or about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus. Alisa Flatow died at an Israeli hospital the next day.

The Israeli government informed the father of Alisa Flatow that the Shaqaqi faction of Palestine Islamic Jihad had claimed responsibility for the bombing, and that their investigation had confirmed that claim.

In July 1996, the US Department of State’s Coordinator for Counterterrorism informed the father that the Department of State was satisfied that the group which had claimed responsibility for the bombing had in fact perpetrated the bombing, and that the Islamic Republic of Iran provided approximately two million dollars to Palestine Islamic Jihad annually in support of its terrorist activities.

Exception to Immunity from Suit under US Law

In the Antiterrorism and Effective Death Penalty Act of 1996, the US Congress lifted the immunity of foreign states for a certain category of sovereign acts which are repugnant to the United States and the international community. That Act created an exception to the immunity of those foreign states officially designated by the Department of State as terrorist states if the foreign state commits a terrorist act, or provides material support and resources to an individual or entity which commits such an act, which results in the death or personal injury of a United States citizen.

Of note is the fact that an amendment was adopted in 1996 to clarify that punitive damages were available in actions brought under the state sponsored terrorism exception to immunity. This provision of law is commonly referred to as the “Flatow Amendment.” It was applied retroactively by the US court in that case.

The US Court thus ruled that Iran did not benefit from an immunity from suit in this case.

Immunity from Suit in Exequatur Proceedings?

When the Flatows sought to declare the US judgment enforceable in France (it is unclear whether they had limited the scope of their claim to compensatory damages), the issue arose as to whether the issue of the immunity from suit could be raised by Iran in the French proceedings.

The Cour de cassation holds that the issue of immunity from suit is a procedural issue which must be addressed before ruling on whether the foreign judgment meets the requirements for being granted exequatur and thus declared enforceable. The court further rules that the findings of the US Court on the immunity of Iran under US law are irrelevant for that purpose.

The characterisation of the issue as procedural allows, in the particular context of exequatur, to avoid the critique that this might amount to reviewing the foreign judgment on the merits.

The most interesting contribution of the judgment is that Iran could invoke its immunity from suit in exequatur proceedings. The court does not explain why, but there are likely two rationales for it.

The first is that the court has ruled several times that States may not raise their immunity from enforcement to dismiss exequatur proceedings. The reason is, it seems, that exequatur is not enforcement per se, insofar as it does not attach any asset or constrain otherwise the (state) debtor. This is abstractly convincing, but, in practice, the essential reason for seeking exequatur is to allow enforcement of the judgment.

The second reason is likely that exequatur proceedings are judicial proceedings. It can seem only logical, then, to apply the immunity from suit in that context. But the subject matter of the suit is not the liability of the debtor. It is the foreign judgment, which has finally ruled on this issue. Should the foreign State be able to raise an immunity from suit in this context? Also, judgments can produce effects irrespective of exequatur and any judicial proceedings. They can be recognised. The result is that state immunity will block certain effects of the judgment only. Is it satisfactory to prevent certain effects, but allow others?

Maybe the initial decision of the Cour de cassation to exclude exequatur from the scope of immunity from enforcement was based on too abstract considerations.

No Exception under French State Immunity Law

Because it finds that Iran may invoke its immunity from suit, the Court then assesses whether the relevant acts were covered by state immunity.

Unsurprisingly, the Court finds that they were.

The Court starts with the case law of the European Court of Human Rights (citing Al-Adsani and J.C. v. Belgium) and rules that there can be no violation of the right to a fair trial and the right to access to court if the limitation is based on customary international law.

The Court then relies on the case law of the International Court of Justice (Germany v. Italy) and the ruling that, in the present state of customary international law, violations of jus cogens have no direct impact on state immunity.

Finally, the Court recalls that, in any case, it has ruled in 2011 that States which are only morally responsible for violations of jus cogens (i.e. sponsors as opposed to direct perpetrators) could not conceivably lose their immunity (one may add that the ECtHR has also ruled so in J.C. v. Belgium).

Iran could thus invoke its immunity from suit in exequatur proceedings. The exequatur proceedings are declared inadmissible.

1 comment on “Flatow v. Iran – French Supreme Court Rules on Sovereign Immunity in Exequatur Proceedings

  1. Olivia Lopes Pegna

    Thank you Gilles for this interesting post!
    In my view it is remarkable that the French Cour de Cassation addressed the issue of immunity in exequatur proceedings before ruling on the merit (i.e. whether the USA decision met the requirements for recognition and enforcement in Frace). In fact, this is what the ICJ in Germany v. Italy ruled with reference to exequatur when dealing with the matter of recognition of the Greek judgments in Italy. It may be useful to remind par. 128 of the decision:
    “in granting or refusing exequatur, the court exercises a jurisdictional power which results in the foreign judgment being given effects corresponding to those of a judgment rendered on the merits in the requested State. The proceedings brought before that court must therefore be regarded as being conducted against the third State which was the subject of the foreign judgment”
    And par. 130:
    “It follows from the foregoing that the court seized of an application for exequatur of a foreign judgment rendered against a third State has to ask itself whether the respondent State enjoys immunity from jurisdiction – having regard to the nature of the case in which that judgment was given – before the courts of the State in which exequatur proceedings have been instituted. In other words, it has to ask itself whether, in the event that it had itself been seized of the merits of a dispute identical to that which was the subject of the foreign judgment, it would have been obliged under international law to accord immunity to the respondent State” .
    (See Boschiero, Juridictional Immunities of the State and Exequatur of Foreign Judgments: A Private International Law Evaluation of the Recent ICJ Judgment in Germany v. Italy, in International Courts and the Development of International Law, Essays in Honour of Tullio Treves (Boschiero, Scovazzi, Pitea, Ragni eds.),The Hague, 2013, p. 781 ss.)

    This is a very complicated issue, in particular – as you evidence in your post – when dealing with systems where foreign judgments are recognized without any previous proceeding being required (as in Italy for example). A rigorous application of this principles may lead to infer that recognition itself should be denied when facing foreign judgments rendered against States that Italian court could not render, according to the rule on immunity (for a comment on this point see O. Lopes Pegna, Breach of jurisdictional immunity by declaring a foreign judgment?, Rivista di diritto internazionale, 2012, p. 1074).

    The reasoning of the Cour de Cassation is analogous to what the Italian Corte di Cassazione did in the same “Flatow case” (Cassazione, 28 ottobre 2015 n. 21946), where the Italian Court dealt with the issue of immunity before dealing with the merit. On the contrary – more recently – in an exequatur proceeding related to the exequatur of a USA decision on the Twin Towers terrorist attack (Cassazione, 10 december 2021 n. 3939) the Italian Corte di Cassazione dealt with the issue of Iran’s immunity only when assessing the merit, i.e. when assessing if the USA decisions met the requirements for recognition.
    It is worth noting, however, that in both cases Italian judges considered the denial of immunity for terrorist attacks perfectly in line with Italian (well known) jurisprudence on denial of immunity in cases concerning serious violations of human rights and humanitarian law (Constitutional Court n. 238/2014). In the Flatow case, however, exequatur was not granted because the “indirect jurisdiction” requirement was not met (in particular because the tort had not occurred in USA territory, and the defendants where not domiciled in the USA).

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