In a judgement delivered on 22 August 2024, the Paris Court of Appeal reaffirmed that foreign States enjoy immunity from jurisdiction if the act giving rise to the dispute is, by its nature or purpose, an act in the exercise of State sovereignty and is therefore not an act of management. Immunity protects not only the State itself, but also any authority, body or entity which may be regarded as a branch or agency of the State, and any delegate or trustee of functions that the State intends to exercise; delegates may be private law entities with a legal personality distinct from that of the State.
In this case, a victim of the military use in 1966 of a product known as “Agent Orange”, a particularly toxic herbicide used during the Vietnam War, sought to hold American companies liable for supplying it to the US Army.
The Court declared the action inadmissible on the ground that the production of Agent Orange was, by its nature and purpose, part of the performance of an act in the public interest of military defence.
The defendants had acted, under penalty, in accordance with the instructions of the US government and had no room for manoeuvre in the performance of the contracts: the production of Agent Orange corresponded to specific orders from the State and its dangerous composition was determined by precise specifications.
This decision reinforces the principle of immunity for private companies acting on behalf of a foreign state, even if their actions cause significant damage.
The case is currently under appeal to the Court of Cassation.
