02/07/2020

Commercial Court rules that Juan Guaidó is interim President of Venezuela and his appointments are Acts of State

In a decision of major international importance Mr Justice Teare has today handed down a judgment which establishes that the UK Government has since 4 February 2019 recognised Juan Guaidó as the constitutional interim President of Venezuela. Teare J went on to hold that as a formally recognised foreign Head of State, interim President Guaidó’s appointments of persons with control over Venezuelan Central Bank assets were acts of the Venezuelan state. This in turn meant that the challenges to those appointments being advanced by Mr Maduro’s rival appointees were not justiciable before an English Court. The Court is instead required to treat Mr Guaidó’s appointments as valid and effective.

Two rival boards have been vying for control of assets in London of the Central Bank of Venezuela (“the BCV”). In one action, dating back to May 2019 and launched in support of an LCIA arbitration, the dispute concerns control of the cash proceeds of around $120 million of a gold swap with Deutsche Bank. A second action, commenced in May 2020, is about conflicting instructions in respect of physical gold reserves worth nearly $1 billion in the custody of the Bank of England. Teare J had last month directed the expedited trial of two preliminary issues in both actions: the “Recognition Issue” (who does Her Majesty’s Government recognise as President?); and the “Justiciability Issue” (are the challenges to Interim President Guaidó’s appointments justiciable or must the court accept them as valid without inquiry?).

On the Recognition Issue, the Court rejected the Maduro Board’s submission that the UK Government’s statements in support of Mr Guaidó were merely political. Teare J concluded that when Jeremy Hunt as the then Foreign Secretary had stated in February 2019 that the UK “now recognises” Mr Guaidó, this was deliberate language which was intended to mean legal recognition. The UK government’s position was then restated in a letter from the Foreign & Commonwealth Office to the Commercial Court in March 2020. The Court was bound by the “one voice” principle to give effect to the recognition described in that letter.

On the Justiciability Issue, Teare J concluded that the acts of appointment by Interim President Guaidó of individuals with control over BCV assets were acts of sovereign authority within the territory of Venezuela which an English Court would not inquire into. He ruled also that the enactment of the underlying legislation which had conferred upon interim President Guaidó these powers of appointment was also a sovereign act, a challenge to the validity of which by the Maduro Board was similarly non-justiciable.

In arriving at those conclusions, Teare J decided a point expressly left open by the Supreme Court in Belhaj v Straw [2017] UKSC 3 as to whether the rule of non-justiciability extended to acts which were unlawful or invalid under the foreign law. Adopting the reasoning of Lord Sumption in Belhaj, Teare J considered that the foreign act of state doctrine extended to all executive acts, irrespective of their lawfulness or validity under the law of the foreign state.

Andrew Fulton and Mark Tushingham appeared for the Guaidó Board, instructed by Arnold & Porter.

It has been announced that the Maduro Board will be seeking permission to appeal. Monica Feria-Tinta was instructed in an advisory role by Zaiwalla & Co, for the Maduro Board.

The case was widely covered in the media including The Financial Times, Forbes, Reuters, The Telegraph, CNBC, ITV, Al Jazeera, The Guardian and GAR.

Read the judgment

Read our past news piece from May 2020.