[1924]	797
A.C.

[HOUSE OF LORDS.]

DUFF DEVELOPMENT COMPANY, LIMITED

APPELLANTS;

AND

GOVERNMENT OF KELANTAN AND ANOTHER

RESPONDENTS.

1924 April 10.

VISCOUNT CAVE, VISCOUNT FINLAY, LORD DUNEDIN, LORD SUMNER, and LORD CARSON.

Foreign State - Sovereignty - Letter of Secretary of State as to Status - Whether Conclusive - Immunity from legal Process - Waiver of Sovereignty - Submission to Jurisdiction - Arbitration - Enforcing Award - Arbitration Act, 1889 (52 & 53 Vict. c. 49), ss. 1, 11, 12.

It is the settled practice of the Court to take judicial notice of the status of any foreign Government, and for that purpose, in any case of uncertainty, to seek information from a Secretary of State; and the information so received is conclusive.

A Government recognized as sovereign by His Majesty's Government is not the less exempt from the jurisdiction of our Courts because it has agreed to restrictions on the exercise of its sovereign rights.

By a deed dated in July, 1912, the Government of Kelantan granted to the appellant company certain mining and other rights to be exercised in that State, and the deed contained an arbitration clause, which incorporated the Arbitration Act, 1889, so far as applicable. Disputes having arisen as to the effect of this deed, they were referred to an arbitrator, who made an award in favour of the company and directed the Government to pay the costs of the arbitration. In December, 1921, the Government applied to the Chancery Division, under s. 11 of the Arbitration Act, to set aside the award, but the application was refused. In June, 1922, the company obtained from the King's Bench Division, under s. 12 of the Act, an order giving leave to enforce the award, but

[1924]		798
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

this order was set aside, on the application of the Government, on the ground that Kelantan was a sovereign independent State. Before setting aside this order the Master asked the Secretary of State for the Colonies for information as to the status of Kelantan, and received in reply an official letter stating that Kelantan was an independent State and its Sultan the sovereign ruler thereof, and that the King did not exercise or claim any rights of sovereignty over Kelantan, and enclosing an agreement regulating the relations between the Sultan and the King. By this agreement the Sultan agreed to have no political relations with any foreign power except through the medium of the King, and in all matters of administration (other than those touching the Mohammedan religion and Malay custom) to follow the advice of an adviser appointed by the King:-

Held, (1.) that the statement in the letter as to the sovereignty of Kelantan and its rulers was not intended to be qualified by the terms of the agreement, and that the letter was conclusive; (2.) (by Viscount Cave, Viscount Finlay, Lord Dunedin, and Lord Sumner; Lord Carson dissenting) that the Government of Kelantan had not submitted to the jurisdiction of the Court for the purpose of the proceedings to enforce the award, either by assenting to the arbitration clause or by applying to the Court to set aside the award.

Mighell v. Sultan of Johore [1894] 1 Q. B. 149 applied.

Decision of the Court of Appeal affirmed.

APPEAL from an order of the Court of Appeal (Lord Sterndale M.R., Warrington and Younger L.JJ.) reversing an order of Roche J.

The following statement is taken from the opinion of Viscount Cave:-

"On July 15, 1912, the respondents, the Government of Kelantan (acting by the Crown Agents for the Colonies), entered into an agreement under seal with the appellants, the Duff Development Co., Ld., whereby the Government of Kelantan granted to the company certain rights of mining, timber cutting and road making and other rights to be exercised in that State. The deed contained an arbitration clause, which incorporated the Arbitration Act, 1889. Disputes having arisen as to the meaning and effect of the deed, the disputes were referred in accordance with the provisions of the arbitration clause to an arbitrator, who, on November 17, 1921, made an award whereby he made certain declarations in favour of the company and directed an inquiry as to damages and directed the Government of Kelantan to pay the costs of the arbitration and award. On

[1924]		799
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

December 22, 1921, the Government moved the Chancery Division of the High Court of Justice in England, under s. 11 of the Arbitration Act, 1889, to set aside the award on the ground of error in law appearing on the face of it; but this application was or March 23, 1922, dismissed with costs a decision which was afterwards affirmed by the Court of Appeal and by this House.(1) On June 12, 1922, the company applied to the King's Bench Division of the High Court by originating summons under s. 12 of the Arbitration Act for leave to enforce the award, and an order to that effect was made by Master Bonner. On July 7, 1922, Master Ball, on the application of the company, made a garnishee order whereby certain moneys said to be owing to the Government of Kelantan from the Crown Agents for the Colonies were attached for payment of the taxed costs of the arbitration. On December 12, 1922, Master Jelf made all order whereby he set aside the order made by Master Bonner and all proceedings under it, including the garnishee order made by Master Ball, and stayed all further proceedings in the matter on the ground that the Sultan of Kelantan was an independent sovereign ruler and the State of Kelantan was an independent sovereign State, and that the Court had no jurisdiction over the Sultan or the Government of Kelantan. An appeal against the order of Master Jelf was allowed by Roche J.; but on an appeal to the Court of Appeal that Court reversed the decision of Roche J., and restored the order of Master Jelf. Hence the present appeal."

Before making the order of December 12, 1922, Master Jelf wrote to the Secretary of State for the Colonies requesting information as to the status of the Government of Kelantan, and received in reply a letter sent by direction of the Secretary of State and dated October 9, 1922.

The letter enclosed an agreement dated October 22, 1910, regulating the relations between the King and the Sultan. The letter is set out and the effect of the agreement is stated in the opinion of Viscount Cave, and both are summarized in the headnote.

(1) [1923] A. C. 395.

[1924]		800
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

1924. February 12, 14, 15, 18. Maugham K.C. and Hon. Stafford Cripps for the appellants. The sovereignty of the State of Kelantan is not an independent sovereignty. The distinguishing mark of an independent sovereign power is that it has reserved to itself the right to manage its own internal affairs, but by the terms of the agreement regulating the relations between Great Britain and Kelantan the King of England has the right to appoint a resident official to tell the Sultan of Kelantan how he is to manage the internal affairs of his country. That is wholly inconsistent with the idea of an independent sovereignty as that term is understood by jurists of repute: Klüber, Droit des Gens Moderne de l'Europe, 21, 22, 24, 33; Vattel, Le Droit des Gens (Pradier-Fodèrè edition. Paris, 1863), Tome 1, p. 123; Calvo, Le Droit International (1870 ed.), Livre II., 31; Calvo, Dictionnaire de Droit International Public et Privè (1885 ed.), Tome 2, p. 225, tit. "Souverain"; Wheaton's International Law (5th English ed.), p. 50; Halleck's International Law (3rd ed.), vol. i., pp. 65, 69. The letter of the Colonial Office is not conclusive on this point. The question whether a State is an independent sovereign power for the purpose of claiming immunity from process in this country is a question of law, and it is the province not of the Government but of the Courts to determine all questions of law: Prohibitions del Roy.(1) If the letter had merely contained a declaration of the recognition of the State of Kelantan by Great Britain no exception could have been taken to it, as recognition is a question of fact, but the declaration that Kelantan is an independent State is an unwarrantable attempt by the Secretary of State to deprive the Courts of this country of their right to determine questions of law: Walker v. Baird(2); The Charkieh.(3) The proper course was for the Colonial Office to furnish the Court with the necessary documents and to leave it to decide the question of independence. Further, the letter is ambiguous. Notwithstanding the declaration as to the independence of

(1) (1607) 12 Rep. 63-65.

(2) [1892] A. C. 491, 496-7.

(3) (1873) L. R. 4 A. & E. 59.

[1924]		801
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

Kelantan, when the letter is read in conjunction with the documents enclosed in it, it shows that the State of Kelantan is not independent. The letter cannot be read as an Act of State, but is merely a letter written to assist the Courts of this country. This is, in effect, an appeal from Mighell v. Sultan of Johore(1), which is opposed to the appellants' contention as to the conclusiveness of a document supplied by a Secretary of State for the information of the Court. That case, unless distinguishable, was wrongly decided and should be overruled. In the earlier case of Taylor v. Barclay(2) information furnished by the Foreign Office was accepted by the Court, but that information related to the question of recognition, which is a question of fact. In Emperor of Austria v. Day and Kossuth(3) it was admitted that the plaintiff had been recognized by Queen Victoria as de facto Emperor of Austria and King of Hungary. Mighell v. Sultan of Johore(1) has been followed by Farwell J. in Foster v. Globe Venture Syndicate.(4) In The Gagara(5) and The Annette(6) the Government supplied information which enabled the Court to form its own conclusion.

[They also referred on this point to Yrisarri v. Clement.(7)]

Assuming that the Sultan of Kelantan is an independent sovereign, he has waived his sovereignty and submitted to the jurisdiction of the Courts of this country; first, by agreeing to refer matters in dispute between the parties to arbitration on the terms of the Arbitration Act, 1889, in accordance with the arbitration clause in the deed of July 15, 1912, and by assenting to the appointment of the arbitrator thereunder and taking part in the arbitration without raising his privilege, and, secondly, by applying to the Court under s. 11 of the Arbitration Act to have the award set aside and pursuing that application up to the House of Lords. If a foreign sovereign sues or is sued without objection he is treated as recognizing the competency of the

(1) [1894] 1 Q. B. 149.

(2) (1828) 2 Sim. 213, 220.

(3) (1861) 3 D. F. & J. 217, 233.

(4) [1900] 1 Ch. 811.

(5) [1919] P. 95.

(6) [1919] P. 105.

(7) (1825) 2 C. & P. 223; (1826) 3 Bing. 432.

[1924]		802
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

Court and stands on the same footing as an ordinary suitor; and if judgment is obtained against him it can be enforced, subject to certain exceptions appertaining to the property of a sovereign, in the same way as if he were a subject. It is anomalous that a sovereign who invokes the jurisdiction of the Court under s. 11 of the Arbitration Act for the purpose of setting aside an award should set up his sovereignty when the award comes to be enforced against him under s. 12 of that Act. Further, a foreign sovereign who by the reference to arbitration on the terms of the Act agrees to submit to the jurisdiction of the Court will be held to his promise. The appellants are therefore entitled to an order that the award shall be enforced in the same manner as a judgment or order.

[Upon this part of the case they referred to Blackstone, Book I., c. 7; Dicey's Conflict of Laws, 3rd ed., p. 235; King of Spain v. Hullet and Widder(1); The Parlement Belge(2); Vavasseur v. Krupp(3); The Newbattle.(4)]

Sir Thomas Inskip K.C. (with him Giveen) for the Attorney-General, who had obtained leave to intervene. The Colonial Office has sent forth no uncertain sound, and if it has informed the Court that the State of Kelantan is a sovereign State that is conclusive. The form of letter in this case was taken from Mighell v. Sultan of Johore(5) (which is the nearest case to the present), and was adopted in Carr v. Fracis Times & Co.(6) and in Luther v. Sagor.(7) The status of foreign States is decided by the Courts of law, but hitherto the Courts have always taken judicial notice of statements of the Secretaries of State as expressing His Majesty's view: Jones v. Garcia del Rio(8); Thompson v. Powles(9); Taylor v. Barclay.(10) Where you have the elements of sovereignty stated and admitted by the Government it does not much matter whether the Government says that the State is a sovereign State or that the King has recognized

(1) (1833) 1 Cl. & F. 333.

(2) (1880) 5 P. D. 197, 214.

(3) (1878) 9 Ch. D. 351.

(4) (1885) 10 P. D. 33, 35.

(5) [1894] 1 Q. B. 149.

(6) [1902] A. C. 176, 184.

(7) [1921] 3 K. B. 532, 536, 549, 556.

(8) (1823) T. & R. 297.

(9) (1828) 2 Sim. 194, 212.

(10) 2 Sim. 213, 220.

[1924]		803
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

the State as a sovereign State. This letter amounts to a recognition. Independence is a deceptive test. As between the King and another State it is for His Majesty to say whether he will treat that State as a sovereign State, as is illustrated by the States of Borneo and Sarawak: see Anson's Law and Custom of the Constitution, 3rd ed., vol. ii., p. 92. Sovereignty is not inconsistent with considerable restrictions on the freedom of the State to administer its own affairs: Vattel (English ed., 1834), Book I., c. 1, 4. Assuming that the letter is ambiguous (which is denied) the proper course was to apply to the Colonial Office for further information, but the letter is in accordance with precedent.

Upjohn K.C. (with him W. E. Vernon) for the respondents. The question whether the Sultan is a sovereign ruler is not determined by the question of independence. Whenever in a civil suit the status of a foreign ruler alleged to be sovereign has come into question, according to the practice which has prevailed for more than a century, the Court does not allow the parties to embark upon an argument on the question of status, but takes judicial notice of that matter, and where the Court is not in a position of its own knowledge to pronounce an opinion on the point it is the custom of the Court to seek information from one of the Secretaries of State as representing the Crown. The proper mode of informing the Court as to the status of a foreign State is by letter by a Secretary of State. In one or two cases the parties have themselves applied for information to the Secretary of State, but have stated that the information was wanted for the use and assistance of the Court. In the face of the statement that the King does not exercise or claim any rights of sovereignty over Kelantan it is impossible to say that this letter is ambiguous. Some dependence on the protecting power is not inconsistent with sovereignty: Grotius de Jure Belli ac Pacis (Whewell's ed.), vol. ii., Book II., c. 15, vii., 3; Vattel (1834 ed.), Book I., c. 1 4, 5, 6; Calvo, Le Droit International, Tome 1, Livre II., 31; Wheaton (5th English ed.), p. 51; Halleck, 3rd ed., p. 67. The question of dependence is purely a question of fact to be derived from

[1924]		804
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

the language of the documents and the practice which has been followed thereunder. As to submission: a foreign sovereign who sues or submits to the jurisdiction of the Court thereby gives the Court the jus dicendi, but does not authorize the issue of execution against him. The Newbattle(1)is a decision that the Court will not seize the property of a sovereign on an interlocutory proceeding in a case where, if the litigation had been between ordinary subjects, the property would have been seized as a matter of course. That was a case of arrestment before judgment, but it is submitted that that makes no difference. In no case has it been held that the property of the sovereign is liable to be subjected to execution. The authorities fall under three heads, and establish, first, that the sovereign must make discovery: King of Spain v. Hullet and Widder(2); Rothschild v. Queen of Portugal(3); secondly, that a sovereign plaintiff must submit to have a counterclaim made against him: The Newbattle(1); South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord(4); and see Dicey's Conflict of Laws, 3rd ed., p. 221; and, thirdly, that an order for security for costs may be obtained against a sovereign plaintiff: The Newbattle(1); Republic of Costa Rica v. Erlanger.(5) But they go no further. The law on this point is summarized in Westlake's Private International Law, 6th ed., 192. A mere submission to the jurisdiction by a sovereign either as plaintiff or defendant is a submission to procedure for the purpose of enabling the Court to decide a right and no more. There is a difference between proceedings down to judgment and proceedings by way of execution to enforce a judgment, in that the former proceedings are not inconsistent with sovereignty and the latter are. A submission by a sovereign must be very closely scrutinized to see how far it extends. A submission to arbitration on the terms of the Arbitration Act in the case of a sovereign must not be so construed

(1) 10 P. D. 33.

(2) 1 Cl. & F. 333.

(3) (1839) 3 Y. & C. (Ex.) 594.

(4) [1897] 2 Ch. 487, 492; [1898] 1 Ch. 190, 194.

(5) (1876) 3 Ch. D. 62.

[1924]		805
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

as to involve any derogation from his sovereign rights. It is a submission to the domestic tribunal only. The words "so far as applicable" in the arbitration clause mean so far as applicable, having regard to the fact that one of the parties is a sovereign power. Those words save the situation and prevent this from being a plain unambiguous waiver of sovereignty such as is necessary to enable the Court to issue execution and subject to seizure the property of the sovereign within the jurisdiction. Further, the submission must be at the time when the Court is asked to exercise jurisdiction over the sovereign and not at any previous time. It must be in the face of the Court, and there has been no such submission: Mighell v. Sultan of Johore.(1)Nor can the application by the Sultan to set aside the award be treated as involving a submission to the jurisdiction of the Court to enforce the award against him by levying execution on his property. If he was dissatisfied with the award no other procedure was open to him.

[He also referred to In re Boks & Co. and Peters, Rushton & Co.(2) and Strousberg v. Republic of Costa Rica.(3)]

Maugham K.C. replied.

The House took time for consideration.

April 10, 1924. VISCOUNT CAVE [after stating the facts]. My Lords, on the hearing of the appeal before your Lordships two points were argued on behalf of the appellant company.

First, it was argued that the Government of Kelantan was not an independent sovereign State, so as to be entitled by international law to the immunity against legal process which was defined in The Parlement Belge.(4) It has for some time been the practice of our Courts, when such a question is raised, to take judicial notice of the sovereignty of a State, and for that purpose (in any case of uncertainty) to seek information from a Secretary of State; and when information is so obtained the Court does not permit it to

(1) [1894] 1 Q. B. 149, 159, 160-1, 163.

(2) [1919] 1 K. B. 491.

(3) (1880) 29 W. R. 125; 44 L. T. 199.

(4) 5 P. D. 197.

[1924]		806
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Cave.

be questioned by the parties. Information of this character was obtained from a Secretary of State and accepted without question in Taylor v. Barclay(1) and Mighell v. Sultan of Johore(2); and those cases were followed in Foster v. Globe Venture Syndicate(3) and in The Gagara.(4) In the present case the requisite inquiry was addressed by Master Jelf (while the summons to enforce the award was pending before him) to the Secretary of State for the Colonies, and in answer to this inquiry the Under Secretary replied as follows:-

"Downing Street, . . . .

"9th October, 1922.

"SIR,

"With reference to your letter of the 31st July, I am directed by Mr. Secretary Churchill to inform you, in reply to your letter of the 18th July, that Kelantan is an independent State in the Malay Peninsula and that His Highness the Sultan Ismail bin Almerhum Sultan Mohammed IV. is the present Sovereign Ruler thereof.

"2. Prior to the year 1909 the relations between Siam and Kelantan were regulated by an agreement signed in 1902 a copy of the English text of which is enclosed. Such rights as the King of Siam possessed over Kelantan were transferred to His Majesty the King by a treaty signed at Bangkok on the 10th of March 1909. A copy of this treaty is enclosed.

"3. Not all the rights possessed by the King of Siam were ever exercised by His Britannic Majesty and the present relations between His Majesty the King and the Sultan of Kelantan which are those of friendship and protection are regulated by an agreement signed on the 22nd of October 1910. A copy of this agreement is enclosed. His Majesty the King does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan.

"4. I am to explain that in 1910 the Rajah of Kelantan with His Majesty's approval assumed the title of Sultan and is now Sultan and Sovereign of the State of Kelantan.

(1) 2 Sim. 213.

(2) [1894] 1 Q. B. 149.

(3) [1900] 1 Ch. 811.

(4) [1919] P. 95.

[1924]		807
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Cave.

"5. The Sultan in Council makes laws for the Government of the State, and His Highness dispenses justice through regularly instituted Courts of Justice, confers titles of honour and generally speaking exercises without question the usual attributes of Sovereignty.

"I am,

"Sir,

"Your most obedient servant,

"(Signed) J. MASTERTON SMITH.

"Master Jelf,

. . "Supreme Court."

The documents enclosed in this reply show that Kelantan had formerly been recognized as a dependency of Siam; that the Siamese Government had by the Treaty of Bangkok transferred to the British Government all its rights over Kelantan; and that by the agreement dated October 22, 1910, referred to in the letter from the Secretary of State, the Rajah (afterwards styled the Sultan) of Kelantan had engaged to have no political relations with any foreign power except through the medium of His Majesty the King of England and to follow in all matters of administration (save those touching the Mohammedan religion and Malay custom) the advice of an adviser appointed by His Majesty. Upon these documents it was argued on behalf of the appellants that, although the Secretary of State had stated in the letter of October 9, 1922, that Kelantan was an independent State and its Sultan a sovereign ruler, this statement must be held to be qualified by the terms of the documents enclosed with the letter; that, taking the information as a whole, the true result was that Kelantan was not an independent but a dependent State; and accordingly that the Sultan was not immune from process in the English Courts.

My Lords, in my opinion this argument cannot prevail. Vattel (Droit des Gens, ed. Pradier-Fodèrè (1863), vol. i., ch. 1) defines a sovereign State as a nation which governs itself by its own authority and laws without dependence on any foreign power (s. 4); but he also lays it down (s. 5) that a State may without ceasing to be a sovereign State be bound

[1924]		808
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Cave.

to another more powerful state by an unequal alliance, and he adds:-

"Les conditions de ces alliances inègales peuvent varier à l'infini. Mais quelles qu'elles soient, pourvu que l'alliè infèrieur se rèserve la souverainetè ou le droit de se gouverner par lui-même, il doit être regardè comme un État indèpendant, qui commerce avec les autres sous l'autoritè du droit des gens.

"Par consèquent un État faible qui, pour sa sûretè, se met sous la protection d'un plus puissant et s'engage, en reconnaissance, à plusieurs devoirs èquivalents à cette protection, sans toutefois se dèpouiller de son gouvernment et de sa souverainetè, cet État, dis-je, ne cesse point pour cela de figurer parmi les souverains qui ne reconnaissent d'autre loi que le droit des gens."

No doubt the engagements entered into by a State may be of such a character as to limit and qualify, or even to destroy, the attributes of sovereignty and independence: Wheaton, 5th ed., p. 50; Halleck, 4th ed., p. 73; and the precise point at which sovereignty disappears and dependence begins may sometimes be difficult to determine. But where such a question arises it is desirable that it should be determined, not by the Courts, which must decide on legal principles only, but by the Government of the country, which is entitled to have regard to all the circumstances of the case. Indeed, the recognition or non-recognition by the British Government of a State as a sovereign State has itself a close bearing on the question whether it is to be regarded as sovereign in our Courts. In the present case the reply of the Secretary of State shows clearly that notwithstanding the engagements entered into by the Sultan of Kelantan with the British Government that Government continues to recognize the Sultan as a sovereign and independent ruler, and that His Majesty does not exercise or claim any rights of sovereignty or jurisdiction over that country. If after this definite statement a different view were taken by a British Court, an undesirable conflict might arise; and, in my opinion, it is the duty of the Court to accept the statement of the Secretary

[1924]		809
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Cave.

of State thus clearly and positively made as conclusive upon the point.

But secondly it is argued on behalf of the appellant company that, assuming the Sultan of Kelantan to be a sovereign ruler, he has waived his sovereignty and submitted to the jurisdiction of the High Court - and that in two ways - namely, first by assenting to the arbitration clause in the deed of 1912, and secondly by applying to the Court to set aside the award of the arbitrator.

Then has the respondent by agreeing to the arbitration clause in the deed of 1912 submitted to the jurisdiction so far as regards an application to the Court to enforce the award? The arbitration clause provides that "this shall be deemed a submission to arbitration within the Arbitration Act 1889 or any statutory modification or re-enactment thereof for the time being in force, the provisions whereof shall apply so far as applicable." I think the effect of this provision is to incorporate in the deed the relevant provisions of the Arbitration Act, including the power given by the Act to either party on having an award made in his favour to make an application to the Court under s. 12 of the Act for leave to enforce the award, and the words "so far as applicable" do not appear to me to qualify that right. If so, then the Sultan has in effect agreed to submit to the jurisdiction so far as to entitle the appellants to apply to the Court for leave to enforce an award against him and on leave being given to enforce it by the usual modes of execution; but the question remains whether this agreement to submit is equivalent to an actual submission. On full consideration I am not satisfied that it is. I do not forget the cases in which it has been held that a person not otherwise liable to the jurisdiction of a Court may make it a term of a contract that questions arising under it shall be decided by that Court, or those cases (such as Montgomery v. Liebenthal(1)) in which it has been held that a person outside the jurisdiction may agree that service of process upon a person within the jurisdiction shall be good

(1) [1898] 1 Q. B. 487.

[1924]		810
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Cave.

service upon himself. But in the case of a foreign sovereign something more than this is required. It was held in Mighell v. Sultan of Johore(1) that a submission by such a sovereign, to be effective, must take place when the jurisdiction is invoked and not earlier, and that when a question of jurisdiction is raised by him there can be no inquiry by the Court into his conduct or actions prior to that date; and I see no reason for doubting the correctness of that decision. If therefore a sovereign having agreed to submit to jurisdiction refuses to do so when the question arises, he may indeed be guilty of a breach of his agreement, but he does not thereby give actual jurisdiction to the Court.

There remains the question whether the Sultan by applying under s. 11 of the Act to set aside the award impliedly submitted to an application under s. 12 of the Act to enforce it. In my opinion, he did not. By his application under s. 11 he endeavoured to get rid of the award and left it to the Court to decide his rights in this respect; but the application for leave to enforce the award is a new proceeding, and though connected with the earlier application is distinct from it. In my opinion, therefore, this argument also fails.

Upon the above view of the case a question which was debated during the argument - namely, whether a foreign sovereign who submits to judgment thereby submits to execution under the judgment upon his property in this country - does not arise for decision; and accordingly I express no opinion upon that question.

For these reasons I am of opinion that this appeal fails and should as against the respondent Government be dismissed with costs, such costs to be set off against any sum which may be owing by the respondent Government to the appellants.

VISCOUNT FINLAY. My Lords, the appellants are a company formed for the purpose of working concessions in Kelantan. The respondents are described as "The Government of Kelantan." The appellants held certain rights and privileges in the State of Kelantan under an agreement made

(1) [1894] 1 Q. B. 149.

[1924]		811
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

with them by the Rajah of that State in 1905. This agreement was cancelled by an indenture made on July 15, 1915, between the Crown Agents for the Colonies, acting for and on behalf of the Government of Kelantan, and the appellant company, and by the same indenture grants were made of certain lands and rights in Kelantan to the company. By the twenty-first clause of the indenture all disputes relating to it were to be referred to a sole arbitrator, and this clause was to be deemed a submission to arbitration under the Arbitration Act of 1889, the provisions of which were to apply as far as applicable.

In 1919 such disputes arose, and they were referred to Sir Edwin Speed, who made his award on November 17, 1921. The Government of Kelantan moved before Russell J., in the Chancery Division, to set aside the award on the ground of mistake in law; this motion was dismissed with costs on March 23, 1922, and Russell J.'s decision was affirmed in the Court of Appeal on May 24, 1922, and in the House of Lords on March 22, 1923. In these proceedings the Kelantan Government raised no objection on the ground of privilege as a sovereign State, but rested their case on such grounds as are open to any party to an arbitration. They had disputed their liability before the arbitrator and they challenged the award itself when made as invalid upon legal grounds.

Before the appeal to the House of Lords just referred to, the appellant company applied to Master Bonner for an order under s. 12 of the Arbitration Act, 1889, for leave to enforce the award in the same manner as a judgment or order. On this summons two questions arose, (1.) whether the Kelantan Government is a sovereign State, and (2.) whether, if the first question were answered in the affirmative, execution could be issued against it in the Courts of this country. The Government of Kelantan did not appear on the summons before Master Bonner, and on June 21, 1922, he made an order that the appellants be at liberty to enforce the award in the same manner as a judgment or order to the same effect.

The Government of Kelantan then applied on a summons

[1924]		812
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

before Master Jelf for an order that the summons before Master Bonner, the alleged service of it on the Government and the order made thereon on June 21, should be set aside on the ground that the Government of Kelantan is that of a sovereign ruler. The hearing was adjourned in order that Master Jelf might communicate with the Colonial Office. The Colonial Office sent to Master Jelf a letter dated October 9, 1922, informing him that Kelantan is an independent State in the Malay Peninsula and that the Sultan is the sovereign ruler thereof. The letter also enclosed (1.) the English text of an agreement in 1902 conferring upon Siam certain rights over Kelantan; (2.) a treaty between Great Britain and Siam dated March 10, 1909, transferring these rights to His Majesty's Government; and (3.) an agreement between Great Britain and Kelantan dated October 22, 1910. This last agreement provided by art. 1 that Kelantan should have no relations with any foreign power except through the King of Great Britain; by art. 2 that His Majesty might appoint officers to advise the Rajah of Kelantan, and that the Rajah should follow their advice in all matters of administration other than those touching the Mohammedan religion and Malay custom, and by art. 3 that the Rajah of Kelantan should not enter into agreements concerning land, or grant or allow the transfer of any concession, in favour of any person other than a native of Kelantan, or appoint officials other than natives, without the consent of His Majesty's Government. There were also clauses providing for the raising of troops in Kelantan in certain events (art. 4); stipulations that internal administration should not be interfered with except in certain contingencies (art. 5); and provisions with reference to posts, telegraphs and railways (arts. 6 and 7). Art. 8 provided that nothing in the agreement should affect the administrative authority then held by the Rajah of Kelantan, and that except as provided in the agreement the relations between the Rajah and His Majesty's Government should be the same as those which had existed between the Rajah and the Siamese Government.

With the consent of His Majesty, the Rajah of Kelantan,

[1924]		813
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

after the date of the last-mentioned agreement, assumed the title of Sultan of Kelantan, and is now so designated.

Master Jelf held that Kelantan is a sovereign State, and by his order dated December 12, 1922, set aside the order made by Master Bonner. Roche J. on appeal reversed the order of Master Jelf; he was, however, himself reversed by the Court of Appeal on January 17, 1923, so that the order of Master Jelf stands good subject to the present appeal. It is from this decision of January 17 that the present appeal is brought to this House.

The first question to be determined is as to the status of Kelantan - is the Sultan a sovereign prince?

It is settled law that it is for the Court to take judicial cognizance of the status of any foreign Government. If there can be any doubt on the matter the practice is for the Court to receive information from the appropriate department of His Majesty's Government, and the information so received is conclusive. The judgment of Farwell J. in Foster v. Globe Venture Syndicate(1) seems to me to be a perfectly accurate statement of the law and practice on this point. There are a great many matters of which the Court is bound to take judicial cognizance, and among them are all questions as to the status and boundaries of foreign powers. In all matters of which the Court takes judicial cognizance the Court may have recourse to any proper source of information. It has long been settled that on any question of the status of any foreign power the proper course is that the Court should apply to His Majesty's Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance.

The letter of the Colonial Office is not an expression of the opinion of the official who wrote it. The first sentence is: "I am directed by Mr. Secretary Churchill to inform you

(1) [1900] 1 Ch. 811.

[1924]		814
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

in reply to your letter of 18th July that Kelantan is an independent State in the Malay Peninsula and that His Highness Ismail" (etc.) "is the present sovereign ruler thereof." This is an official answer by the Secretary of State on behalf of the Government.

The question put was as to the status of the ruler of Kelantan. It is obvious that for sovereignty there must be a certain amount of independence, but it is not in the least necessary that for sovereignty there should be complete independence. It is quite consistent with sovereignty that the sovereign may in certain respects be dependent upon another Power; the control, for instance, of foreign affairs may be completely in the hands of a protecting Power, and there may be agreements or treaties which limit the powers of the sovereign even in internal affairs without entailing a loss of the position of a sovereign Power. In the present case it is obvious that the Sultan of Kelantan is to a great extent in the hands of His Majesty's Government. We were asked to say that it is for the Court and for this House in its judicial capacity to decide whether these restrictions were such that the Sultan had ceased to be a sovereign. We have no power to enter into any such inquiry. The reply of the Colonial Office to Master Jelf on October 9, 1922, states that Kelantan is an independent State in the Malay Peninsula and that the Sultan is the sovereign ruler, that His Majesty's Government does not exercise or claim any rights of sovereignty or jurisdiction over Kelantan, and that the Sultan makes laws, dispenses justice through Courts, and, generally speaking, exercises without question the usual attributes of sovereignty.

In the face of this statement it is hopeless to contend that the Colonial Office, by appending to its letter the agreements with Siam and with Great Britain, referred it to the Courts to decide upon these documents whether the Sultan was sovereign or not. Such an interpretation is contrary to the plain terms of the letter. Of course, the Colonial Office might have given a bald answer that the Sultan is a sovereign, but it has been the practice when there are

[1924]		815
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

agreements or treaties dealing with the powers of the alleged sovereign to append to the reply on the question of sovereignty copies of any documents. There are very good reasons for this practice. The department might lay itself open to serious misunderstanding if it took any other course. It might be said that there was a want of candour in merely stating the conclusion that the Power is a sovereign Power without disclosing any such limitations on the sovereignty as exist here. The contention that by appending these documents the Colonial Office remits the question to the Court to form its own opinion upon it is based on a misconception. When the letter and the documents are read together, it is clear that the Secretary of State says explicitly that the Sultan is a sovereign ruler, and the documents are appended by way of making it clear that their effect has been considered and that the Colonial Office has given all due weight to them in arriving at the conclusion that the Sultan is a sovereign prince. There is no ground for saying that because the question involves considerations of law these must be determined by the Courts. The answer of the King, through the appropriate department, settles the matter whether it depends on fact or on law.

It is true that by the agreement of October 22, 1910, the Sultan is bound not to have relations with any foreign Power except through His Majesty the King, and to follow the advice given him by the advisers appointed by His Majesty "in all matters of administration, other than those touching the Mohammedan religion and Malay custom." But it would be idle to contend that sovereignty is destroyed by the fact that a protecting Power has charge of foreign relations, and as regards the internal affairs the exception from the obligation to be guided by the advisers appointed by His Majesty is a very large one, as it comprises all matters touching the religion and the customary law of the country. The restrictions on the grant of concessions and the employment of officials in art. 3, and the provisions as to posts, telegraphs and railways in arts. 6 and 7 are quite consistent with the sovereignty of the Sultan, and so are the restrictions

[1924]		816
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

on the grant of concessions for the construction of railways within the State (art. 7). Art. 5 is as follows:-

"His Majesty's Government undertake not to interfere with the internal administration of the State of Kelantan otherwise than as provided for in this agreement, so long as nothing is done in that State contrary to the treaty rights and obligations that His Majesty's Government have with foreign Governments, and so long as peace and order are maintained in the State of Kelantan, and it is governed for the benefit of its inhabitants with moderation, justice and humanity."

And art. 8 provides that "nothing in this agreement shall affect the administrative authority now held by the Rajah of Kelantan," and that except as provided in the agreement the relations between the Rajah and His Majesty's Government shall be the same as those which previously existed between him and the Siamese Government.

While there are extensive limitations upon its independence, the enclosed documents do not negative the view that there is quite enough independence left to support the claim to sovereignty. But, as I have said, the question is not for us at all; it has been determined for us by His Majesty's Government, which in such matters is the appropriate authority by whose opinion the Courts of His Majesty are bound to abide.

The second question in the case is whether the Government of Kelantan had made such a submission to the jurisdiction of the Courts here that execution can be issued upon the award against any property in this country of the Kelantan Government.

It was contended by the appellant company that there was such a submission in art. 21 of the indenture of July 15, 1912, which contains the contract between the appellant company and the Kelantan Government.

This article begins by providing for the reference of any disputes under the contract to a sole arbitrator, and then proceeds: "And this shall be deemed a submission to arbitration within the Arbitration Act, 1889, or any statutory

[1924]		817
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

modification or re-enactment thereof for the time being in force the provisions whereof shall apply as far as applicable."

One of the provisions of this Act is s. 12:-

"An award on a submission may, by leave of the Court or a judge, be enforced in the same manner as a judgment or order to the same effect."

We are asked by the appellant company to say that this clause is a submission to the jurisdiction of the Court to order execution to issue upon the award against the property of the Government of Kelantan.

To appreciate this question it is necessary to refer to the history of our law with regard to the enforcement of awards.

Apart from statute the award of an arbitrator on a reference by agreement could be enforced only by action. When this was the state of the law it could not have been contended that a reference by agreement to arbitration with a foreign Government even if made in England would involve any obligation on the part of the foreign Government to submit to the jurisdiction of the English Courts in an action to enforce the award. When such an action was brought it would be at the option of the foreign Government to appear or not, as it pleased. There would certainly be no obligation upon it to accept the jurisdiction and to submit to judgment and execution against - any property belonging to it in England. There is nothing in an agreement for settlement by arbitration to import a waiver of the right of a sovereign Power to refuse the jurisdiction of the English Courts in an action upon the award.

As time went on more summary remedies were given in addition to the remedy by action. In 1698 it was provided that the parties might agree that the submission should be made a rule of Court and that the Court might make it a rule of Court accordingly, and that any party disobeying the award should be liable to all penalties for contemning a rule of Court: 9 Will. 3, s. 15, s. 1. This proceeding, it will be observed, required the consent of the parties.

The Common Law Procedure Act, 1854, s. 17, went a step further, and provided that any agreement in writing for a

[1924]		818
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

reference might be made a rule of Court unless the agreement provided to the contrary. It seems clear that this provision could not be put in force against a foreign Government without its consent.

The Judgments Act, 1838 (1 & 2 Vict. c. 110, s. 18), provides that all rules of Court for the payment of money should have the effect of judgments. This enactment still remains in force, but the sections of the Act of William III. and of the Common Law Procedure Act, 1854, above referred to, were repealed by the Arbitration Act, 1889, which by s. 12 provides, as already stated, that an award on submission may by leave of the Court or a judge be enforced in the same manner as a judgment or Order to the same effect.

In considering the effect of this s. 12 of the Arbitration Act it is material to observe that in the case of all the previous enactments for the same purpose the party against whom the rule was applied for would have the opportunity of opposing it, and it is clear that no such rule would have been made as against a sovereign State unless it had entered into an agreement submitting to the jurisdiction. The procedure by rule was merely an alternative procedure for the procedure by action, and the foreign State would have the same right of asserting its immunity as if the old remedy by action on the agreement had been resorted to.

Sect. 12 of the Arbitration Act of 1889 involved merely a change of procedure. The award may under it, by leave of the Court, be enforced as if it were a judgment. Application must be made to the Court for leave, and it appears to me that on such an application, if the other party to the award is a sovereign State, that party might assert its immunity from process and that the Court would be bound to refuse leave unless the objection had been waived.

Art. 21 in the indenture of July 15, 1912, on which the appellants rely as incorporating s. 12 of the Arbitration Act, cannot have the effect suggested. Sect. 12 can be made operative only by leave of the Court. I fail to see how art. 21 can possibly be read as an agreement by the Government

[1924]		819
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

of Kelantan to consent to an Order for such leave being made. The leave of the Court being necessary before the award can be enforced as if it were a judgment, if a sovereign State claimed its immunity this would be a good reason for refusing the leave. The assertion that the agreement for the application of the provisions of the Arbitration Act involves a waiver of the right to object to execution on the ground of sovereignty involves reading s. 12 of the statute of 1889 as if it conferred a right to have execution on the award. The only right conferred is a right to apply for leave to issue execution on the award, and this leave will be granted only in suitable cases. It is not a suitable case if a foreign Government is concerned, unless there has been a clear waiver by that Government of its sovereign rights for this purpose. To the arbitration the Government of Kelantan had no objection; they attended the proceedings throughout. It was only when it was proposed to take a step which involved the right to execution against the Government that there was any occasion to raise the objection of sovereignty.

The present case differs fundamentally from the case of an action in which a foreign Government has appeared and has had judgment given against it. It is not necessary to decide that case for the purpose of the present appeal; here the only consent was to arbitrate.

The application to set aside the award was based entirely on the allegation that the arbitrator had gone wrong on a point of law and that this appeared on the face of the award. The award in that case might be set aside. I cannot see how we can construe such an application as involving an admission that if it failed the Government property might be taken in execution. The Kelantan Government had opposed the claim made in the arbitration throughout. Their motion was made to get rid of the award as vitiated by a wrong view of the law. The Government were quite entitled to get rid of an award the making of which they had opposed, and the motion to set it aside was solely on the ground that the award was inherently bad.

On this part of the case very many authorities were

[1924]		820
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Viscount Finlay.

cited. I do not consider it necessary to refer to them. The question is a very short one: Have the Kelantan Government waived objection to execution upon their property in this country? It is beyond question that Kelantan as a sovereign State is entitled to immunity from execution against the property of the Sultan, unless there has been a waiver.

I concur with the judgment delivered by the Master of the Rolls in this case, and think that he took the proper course in deciding the substantial question which had been litigated and in refusing to amend the application in the nebulous fashion suggested.

I am of opinion that this appeal should be dismissed with costs, but I think that the appellants should be allowed a set-off in respect of any costs due to them in respect of the other proceedings relating to the award which have not been paid.

LORD DUNEDIN. My Lords, I concur. On the first point I have little to add to what has been said by my noble and learned friend on the Woolsack. It seems to me that once you trace the doctrine for the freedom of a foreign sovereign from interference by the Courts of other nations to comity, you necessarily concede that the home sovereign has in him the only power and right of recognition. If our sovereign recognizes and expresses the recognition through the mouth of his minister that another person is a sovereign, how could it be right for the Courts of our own sovereign to proceed upon an examination of that person's supposed attributes to examine his claim and, refusing that claim, to deny to him the comity which their own sovereign had conceded? The second point is whether the Sultan has in this case submitted to the jurisdiction. It is true that the learned judges of the Court of Appeal based their judgment on the judgment they had pronounced the day before in the garnishee action, and in that action they had held that the Sultan's property could not be taken in execution of costs awarded against

[1924]		821
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Dunedin.

him in the action where he had submitted to the jurisdiction by appearing as a plaintiff to seek to have the award set aside. My Lords, I wish most emphatically to state that I could not be held to approve of that part of the judgment in the garnishee case or the headnote in the case of the South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord(1), which I consider wrong and misleading. But the question as to the power of execution for costs so awarded is not raised by the present action, and it is therefore probably better that no considered opinion should be given on that subject. The only question to my mind is whether the Sultan submitted to the jurisdiction by entering into the agreement to refer or by appearing in the reference. The present action does not embrace the Chancery costs. It seeks to enforce the award as a judgment. The Sultan does not in this action waive the privilege of sovereignty. He can therefore only be subjected to the jurisdiction if either he has done so by appearing as plaintiff in the Chancery suit or by his subscription of the contract. Now, so far as the suit is concerned, I do not think this proceeding is a proceeding which could have founded a cross-action or counter-action to the suit. The same argument as prevailed in the South African Republic Case(1) prevails here. Then, as regards arbitration. An arbitrator is not a Court, and therefore by appearing before the arbitrator he did not, submit himself to the jurisdiction of the Courts. (It may be interesting to note that under the Roman law appearance before an arbiter did not give rise to reconvention: see a very learned judgment of Inglis L.J.-C., in Thompson v. Whitehead.(2)True it is that the Sultan contracted to allow the jurisdiction to be exercised against him, but he did so out of Court, and now he has changed his mind. He has broken his contract, but the Court has no jurisdiction to enforce any performance of it. It seems to me to say that by agreeing to submit he did submit is to argue in a circle.

I therefore agree that the present action fails and that the appeal should be dismissed.

(1) [1898] 1 Ch. 190.

(2) (1862) 24 D. 331.

[1924]		822
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))

LORD SUMNER. My Lords, I should not trouble your Lordships at any length with my reasons for thinking that this appeal fails, if it were not for the novelty of this important subject in your Lordships' House.

The principle is well settled, that a foreign sovereign is not liable to be impleaded in the municipal Courts of this country, but is subject to their jurisdiction only when he submits to it, whether by invoking it as a plaintiff or by appearing as a defendant without objection. For present purposes it is not necessary to examine the particular theory of law on which this principle is rested. The practice is also well settled that the Court may and generally should make its own inquiry of the competent Secretary of State in order to ascertain, in case of need, whether a particular State is a sovereign State, or a particular person is the head, hereditary or elected, of such a State.

Your Lordships were frankly told at the Bar that this case is virtually an appeal against Mighell v. Sultan of Johore(1), in which that practice was approved. The questions there put to the Colonial Office by direction of the Court were not simply answered Aye or No, but were answered affirmatively with the addition of details explaining the Treaty relations of Johore with Her Majesty Queen Victoria. In The Charkieh(2) a similar question was put to the Foreign Office with regard to the Khediviate of Egypt and was answered in the negative in the terms "the Khedive has not been and is not now recognized by Her Majesty as reigning sovereign of the State of Egypt." In The Annette(3) the reply was that His Majesty was provisionally co-operating with the new Government, in opposition to the Soviet Government, but had not yet formally recognized it as the Government of a sovereign independent State. In The Gagara(4) the statement by the Foreign Office was that Esthonia was recognized as a sovereign State, but provisionally. Thus in one case a clear answer was given that there had been no recognition; in another that the State

(1) [1894] 1 Q. B. 149.

(2) L. R. 4 A. & E. 59, 86.

(3) [1919] P. 105.

(4) [1919] P. 95.

[1924]		823
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

was sovereign and was so recognized, but with further information as to the Crown's Treaty relations with it; in the third that common action had taken place but without recognition of sovereignty; in the fourth that there was only provisional recognition, but still the State had been recognized as sovereign. Two are cases of States of some antiquity; two are cases of Governments of recent and troublous origin. The same procedure was, however, followed in them all.

Certain expressions used by Brett M.R. and Kay L.J. in giving judgment in the Sultan of Johore's Case(1) appear to suggest that the reason why the answer of the Colonial Office ought to be accepted without further discussion, is, that in effect it is something which the Crown deigns to declare to its Courts of law, and therefore it cannot be criticized or supplemented, since that would be disrespectful to the Crown itself. That this view of the meaning of the Court of Appeal has had its effect is shown by the language used by Farwell J. in Foster v. Globe Venture Syndicate.(2)The appellants, however, desire to go a little behind the form observed. They not unreasonably say: "An official of the Colonial Office advises the Sultan to go to arbitration, and the same official of the Colonial Office, or some other, advises him to dispute the award, and then the Colonial Office, in the name of the Crown, says that the Sultan is a sovereign and so is bound to nothing, not even to pay for what the Colonial Office has advised him to do. What then is the statement that the Sultan is a sovereign? Is it the voice of the sovereign of this country or is it in reality nothing but the contention of some one in the Colonial Office?"

Without contesting in the least either the inconvenience or the impropriety of any conflict between the High Court and the Secretary of State upon the grave question of the sovereignty of the Sultan of Kelantan, I venture to think that the mere obligation of deference to any statement made in His Majesty's name hardly constitutes the whole legal basis for the rule laid down in the Johore Case.(1)

The status of foreign communities and the identity of

(1) [1894] 1 Q. B. 149.

(2) [1900] 1 Ch. 811.

[1924]		824
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

the high personages who are the chiefs of foreign states, are matters of which the Courts of this country take judicial notice. Instead of requiring proof to be furnished on these subjects by the litigants, they act on their own knowledge or, if necessary, obtain the requisite information for themselves. I take it that in so doing the Courts are bound, as they would be on any other issue of fact raised before them, to act on the best evidence and, if the question is whether some new State or some older State, whose sovereignty is not notorious, is a sovereign State or not, the best evidence is a statement, which the Crown condescends to permit the appropriate Secretary of State to give on its behalf. It is the prerogative of the Crown to recognize or to withhold recognition from States or chiefs of States, and to determine from time to time the status with which foreign powers are to be deemed to be invested. This being so, a foreign ruler, whom the Crown recognizes as a sovereign, is such a sovereign for the purposes of an English Court of law, and the best evidence of such recognition is the statement duly made with regard to it in His Majesty's name. Accordingly where such a statement is forthcoming no other evidence is admissible or needed. I think this is the real judicial explanation why it was held that the Sultan of Johore was a foreign sovereign. In considering the answer given by the Secretary of State, it was not the business of the Court to inquire whether the Colonial Office rightly concluded that the Sultan was entitled to be recognized as a sovereign by international law. All it had to do was to examine the communication in order to see if the meaning of it really was that the Sultan had been and was recognized as a sovereign.

There may be occasions, when for reasons of State full, unconditional or permanent recognition has not been accorded by the Crown, and the answer to the question put has to be temporary if not temporising, or even where some vaguer expression has to be used.(1) In such cases not only has the Court to collect the true meaning of the communication for itself, but also to consider whether the statements as to

(1) [1919] P. 105.

[1924]		825
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

sovereignty made in the communication and the expressions "sovereign" or "independent" sovereign used in the legal rule mean the same thing. Best C.J. says in Yrisarri v. Clement(1)that recognition is conclusive, but, if there is no recognition yet given, the independence becomes matter of proof. I conceive that, if the Crown declined to answer the inquiry, as in changing and difficult times policy might require it to do, the Court might be entitled to accept secondary evidence in default of the best, subject, of course, to the presumption that, in the case of a new organization, which has de facto broken away from an old State, still existing and still recognized by His Majesty, the dominion of the old State remains unimpaired until His Majesty is pleased to recognize the change. In The Charkieh(2) the Foreign Office returned a definite and unambiguous answer that the Crown had never recognized the Khedive Ismail or his predecessors as sovereigns, but only as provincial authorities, albeit hereditary ones, who derived their authority and status from the Sultan of Turkey. This was conclusive, and hence it is that Brett M.R. indicated his opinion, that the further inquiries made by Sir R. Phillimore were unnecessary. In the present case there is a precise and sufficient statement as to the status of the Sultan of Kelantan as recognized by His Majesty, with nothing ambiguous about it.

The questions, what are the boundaries of a foreign State? and also what communities or tribes are under its authority? apart from any recognition of their sovereignty or refusal to recognize it, are questions, which seem to me to stand on a different footing. I express no concluded opinion, but, for the purpose of making clearer the reasons above given by considering the converse case, I venture to suggest my present view.

In this connection two cases may be usefully compared: Foster v. Globe Venture Syndicate(3) and Luther v. Sagor.(4)In the former Farwell J. treated the question whether the

(1) 2 C. & P. 223, 225.

(2) L. R. 4 A. & E. 59.

(3) [1900] 1 Ch. 811.

(4) [1921] 1 K. B. 456 (on appeal [1921] 3 K. B. 532).

[1924]		826
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

Suss district was within the territories of Morocco as equivalent in character to the question whether the Suss tribes had or had not been recognized as independent. He appears to have thought that one matter for judicial notice was the geographical extent of the jurisdiction of the Suss tribes, if they were recognized as independent. I confess, though with the diffidence that I always feel in criticising so great a judge, that the two questions seem to me to be quite different. To ask if the Crown has recognized a State as a sovereign State is one thing; to ask exactly what the boundaries of that State are at any time and whether certain persons live within or without them is quite another. The reason acted on by Farwell J. was the expression quoted from Thompson v. Barclay(1): "The Courts of the King should act in unison with the Government of the King." This seems to be rather a maxim of policy than a rule of law. If, as Farwell J. supposed, cases had occurred in which the Crown had applied for redress of wrongs, suffered locally by British subjects, either to the Sultan of Morocco or to the head of the independent Suss tribes, such an act would have been in the former case a recognition of the Sultan as sovereign of the district in question, and in the latter a recognition of the Suss tribes both as a sovereign State and as exercising that sovereignty in that district. No doubt the statement of the Foreign Office that this was so would be conclusive. Either it would state the recognition of the Suss tribes or it would state the recognition of the extent of the Sultan's local sovereignty, much as if application had been made by the Sultan for an exæquatur for a British Consul to be stationed in the district. Probably Farwell J. meant no more than this. The frontiers of foreign countries are matters of geography, not always involved with matters of State. Certainly it is not always safe for Courts to form their own impression on such subjects. Hong Kong, for example, has been spoken of judicially as if it were a Chinese port: Nobel's Explosives Co. v. Jenkins & Co.(2) It does not, however, follow that, on mere questions of this

(1) 2 Sim. 213, 221.

(2) (1896) 1 Com. Cas. 436, 439.

[1924]		827
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

kind, resort ought to be had to the Foreign Office, or that its answer, if given, must necessarily be taken to be correct in fact. I do not think it has yet been held or ought to be held that the Crown must be deemed to know all the geographical boundaries of all foreign States at all times, and this so that its statement on the subject would be conclusive. Contiguous States have often disputed their common boundary, and no other State has had occasion to know where it runs any better than they have done themselves. This was so in the last century with regard to the northern boundary of the State of Maine and Canada, and of the common frontier in the Oregon Territory. More recently there have been cases of this kind between the various Republics of South America. How can a judge of the High Court take judicial notice of untraced lines, and how can His Majesty's Government tell him with authority exactly where they are? I doubt very much if the boundaries of the dominions of the Emir of Riad in Central Arabia were exactly known to any European Government ten years ago, or if those of the Borku and Wadai tribes in the Southern Libyan Desert are definitely known to-day. I think such boundaries, where no acts of the Crown with regard to them have been involved, must depend on evidence given in the ordinary way.

Again, it is not indispensable that the information should have been solicited from the competent Government department by the Court itself. In Luther v. Sagor(1) the evidence put in by the parties included several letters from the Foreign Office relating to the recognition (if it amounted to recognition), which His Majesty had been advised to extend to the Soviet Government, though subsequently the Court made further inquiries of its own. The letters put in before Roche J. stated that the Soviet Government had not been recognized in any way, but that M. Krassin personally was regarded by the Foreign Office as a foreign representative, who should be exempt from legal process, though this point was left to the better judgment of the Courts, and on this evidence he

(1) [1921] 1 K. B. 456, 477.

[1924]		828
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

held that the Soviet Government was not a sovereign State. Before the Court of Appeal a further letter from the Foreign Office was admitted, which stated at a later date that His Majesty's Government did recognize the Soviet Government de facto, and on this further evidence alone the decision below was reversed. In both Courts information communicated by the Foreign Office was received as being the proper material on the question of the status of the Soviet Government of Russia, and neither Court refused nor thought itself bound to refuse to consider such information merely because it had been obtained by the parties and by them submitted to the Court. Both Courts proceeded to consider the meaning and effect of the various communications and, in view of the fact that, as Roche J. puts it, they were "as clear as the indeterminate position of affairs in connection with the subject matter of the communications enabled them to be" (which to be sure was not luce clarius), I have no doubt that the construction was a matter for argument before and for decision by the Courts. As it seems to me, no such question arises in the present case. Here there is an explicit statement that the Sultan of Kelantan is an independent sovereign, and about this there is no possible ambiguity. To inquire what constitutes independence and whether the Treaty cited in the letter does or does not impair his independence seems to me to be irrelevant. We should really question the correctness of the course taken by His Majesty in regarding this potentate as a sovereign, if we were to discuss the question, how far the Sultan's sovereignty is reconcilable with the terms of the Treaty.

The second question which arises, though narrower in scope, is no less important - namely, the question how far, if at all, His Highness the Sultan (who really is, and, in my opinion, ought to have been made, the formal respondent on the record) has submitted to the jurisdiction of the High Court. It is raised in this way: first, whether he has in any way submitted himself to the jurisdiction to enforce the award as a judgment, which I think is strictly the only issue to be determined, and second, whether he has in any way

[1924]		829
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

submitted his property to any process or all processes of execution of a judgment validly pronounced against him, either in respect of costs, where he has been the applicant, or in respect of the award itself. The latter raises a far-reaching and fundamental question, which, if answered in favour of the appellants, involves allowing the appeal, and as I conceive materially alters the law hitherto prevailing on this subject.

The Sultan's contract to arbitrate in accordance with the Arbitration Act is not, either in itself or in combination with anything else in this case, a submission to the jurisdiction of the High Court. It is not an undertaking given to the Court itself. It is an agreement inter partes, and no more. An agreement inter partes that the Court shall be enabled to do something, which by law it cannot do, is of no avail, whether it is by statutory rules that the Court is thus incompetent: British Wagon Co. v. Gray(1), or by a general rule of the common law, like that which gives or creates a foreign sovereign's immunity. Ordinary persons can contract themselves out of the formalities, which the orders and rules prescribe for proceedings, which the Court has power to take: Montgomery v. Liebenthal.(2) So too, acting under statutory authority, the High Court allows service of its writ, or of notice of its writ as the case may be, on parties outside the jurisdiction, who, if within it, would have been personally amenable. Sovereigns, however, are not amenable at all, except by their own consent, and there is no principle upon which such consent can be deemed to have been given short of action taken towards the Court itself, such as is commonly called a submission to the jurisdiction. It is, therefore, necessary to find something voluntarily done by the foreign sovereign in or towards the Court and to find in what is done something that really evinces an intention to submit. This seems to me to be beyond the limits of presumption or fiction, for the foundation of the jurisdiction is not any rule of municipal law but the action of an independent personage, who himself is beyond its reach.

(1) [1896] 1 Q. B. 35.

(2) [1898] 1 Q. B. 487.

[1924]		830
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Sumner.

My Lords, I refrain from expressing any opinion on the question whether or not a foreign sovereign who has submitted to the jurisdiction by appearing in a proceeding in a municipal Court thereby submits himself or his property to any of the processes of execution in case judgment should be pronounced against him. The question has been discussed, but I agree with your Lordships in thinking that it does not arise for decision on this occasion. I only desire to say that in refraining from dealing with the point I am not to be taken as doubting the reasoning contained in the judgments in the garnishee proceedings between the present parties.

My Lords, I agree that the appeal should be dismissed.

LORD CARSON. My Lords, I must confess that if it was open to me to disregard the statements contained in the letter from the Secretary of State for the Colonies, that "Kelantan is an independent State and the present Sultan is the present sovereign ruler thereof," I would find great difficulty in coming to that conclusion of fact, having regard to the terms of the documents enclosed in the letter from the Secretary of State. It is, in my opinion, difficult to find in these documents the essential attributes of independence and sovereignty in accordance with the tests laid down by the exponents of international law. It is, however, unnecessary to pursue that investigation or to examine the very ample material put before us in the arguments of Mr. Maugham, as I agree with your Lordships that the Courts of this country are bound to take judicial notice of the status of any other country in accordance with the information afforded to them by the proper representative of the Crown. As Lord Esher said in the case of Mighell v. Sultan of Johore(1): "When once there is the authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that in the Courts of this country is decisive." Indeed, it is difficult to see in what other way such a question could be decided without creating chaos and confusion, the more especially so when we consider that "many States,

(1) [1894] 1 Q. B. 149, 158.

[1924]		831
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Carson.

regarded as sovereign, do not exercise the right of self-government entirely independent of other States, but have their sovereignty limited and qualified in various degrees, either by the character of their internal constitution, by stipulations of unequal treaties of alliance, or by treaties of protection or of guarantee made by a third Power": Halleck, p. 67. And, in truth, it is the recognition of the status of the Government which must be the main element to determine this question; the only proper evidence of which can be supplied by the officer representing the Crown.

The cases upon this subject have been already referred to, and they are discussed at considerable length in the judgment of the Master of the Rolls. Treating, therefore, the Government of Kelantan as a sovereign State, it follows that prima facie, at all events, neither the Government nor its property is subject to the jurisdiction of the Courts of this country. "The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction": The Parlement Belge.(1)

It is necessary to note, with a view to subsequent consideration of the present case, that "the real principle," as stated by Lord Esher in the same case, "on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity - that is to say, with his absolute independence of every superior authority," and this privilege every sovereign or

(1) 5 P. D. 197, 207, 214.

[1924]		832
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Carson.

sovereign Power has a right to claim. The main contention, however, of the appellant in the present case is that wherever a sovereign State has submitted to the jurisdiction of our Courts, it waives its privileges, and must for the purpose of doing justice be treated in exactly the same way as any other litigant. The general proposition upon this subject is, I think, accurately stated in Westlake's Private International Law, 6th ed., p. 259, s. 192: "But a foreign state or person entitled to the privilege of exterritoriality, bringing an action in England, will be bound as a private corporation or person would be bound to do complete justice to the defendant with regard to the matters comprised in the action, and will be subject to all cross-actions, counterclaims, defences and steps of procedure which as between private parties would be competent to the defendant for the purpose either of obtaining such complete justice or of defending himself against the plaintiff's claim," and the editor quotes Paulus, Digest 5, 1, 22: "Qui non cogitur in aliquo loco judicium pati, si ipse ibi agat, cogitur excipere actiones et ad eundem judicem mitti."

It is to be observed that the main principle underlying the cases referring to the exercise of jurisdiction by our municipal Courts is that it was necessary that a sovereign Power should be considered to have waived its privileges and be treated as other litigants for the purpose of enabling complete justice to be done between the parties: see King of Spain v. Hullet(1), and also the judgment of James L.J. in Strousberg v. Republic of Costa Rica.(2) It is interesting to note that in the former case, where the King of Spain unsuccessfully resisted an application that he should answer a cross-bill personally and upon oath, the argument used on his behalf was that contended for by Mr. Upjohn as one of the reasons for resisting the grant of execution - namely: "It is impossible," said the Attorney-General, "for the appellant to do so consistently with his independent sovereign character, according to the principles of the law of nations, as practised between all European states, and his admitted

(1) 1 Cl. & F. 333, 345.

(2) 44 L. T. 199.

[1924]		833
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Carson.

relation to this country as head of the kingdom of Spain." It is in applying this principle of equal treatment that the sovereign submitting to the jurisdiction has been ordered to give security for costs and also security for damages: see The Newbattle(1), and it is difficult to find any principle on which such orders should be permitted if the sovereign was not liable to the ordinary results flowing from the judgment and execution. Indeed, so far as I can ascertain from such researches as I have been able to make, there is no authority which limits the power of the Courts in this country, when once a sovereign has submitted to its jurisdiction, to merely decide questions at issue and not to make a judgment effective by the issue of execution; the result of any such decision would have to make the decrees of our Courts sterile and ineffective. It is true that in The Newbattle Brett M.R. stated the proposition in this way(2): "It has always, however, been held that if a sovereign prince invokes the jurisdiction of the Court as a plaintiff, the Court may make all proper orders against him. The Court has never hesitated to exercise its powers against a foreign Government to this extent. It is another question as to what may be the result of an application for execution by seizure of the plaintiffs' ship if the judgment should be against the plaintiffs," but that is not a decision that the judgment of the Court could not be enforced, and rather suggests that there may be questions as to the nature of the particular property which may be taken in execution.

The real crux, however, is as to whether the Government of Kelantan has waived its privileges, and if so, how far, under the circumstances disclosed in the present case. The deed of cancellation under which the arbitration was held contained in cl. 21 a submission to arbitration by the Government of Kelantan, which provides that "this shall be deemed a submission to arbitration within the Arbitration Act 1889 or any statutory modification or re-enactment thereof for the time being in force the provisions whereof shall apply so far as applicable." Now the Arbitration Act

(1) 10 P. D. 33.

(2) 10 P. D. 35.

[1924]		834
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Carson.

of 1889, under the heading of "References by consent out of Court," by the first section provides as follows: "A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made an order of Court."

The jurisdiction therefore of the Court to see that the submission is duly carried out and the machinery for making it effective attaches from the moment of the submission, and a refusal to comply with an award made on a submission in writing is a contempt of Court and might in certain cases have been punished by attachment. I fail to see how the principles to which I have already referred of doing complete justice where a sovereign has waived his privileges can be carried out if it is to be held, as it has been held apparently in this case, that at each step when it is necessary to invoke the assistance of the Court the sovereign Power can claim such assistance, but can when it is demanded by the other party raise as a defence that he is protected by his sovereignty. Take, for instance, the present case; the arbitration was duly held in pursuance of the submission and the sovereign Power duly appeared as a party, and when an award was made against him, claimed the right to appeal to the Courts and finally to your Lordships' House to set aside the award under s. 11, and no doubt if he had been successful would have claimed and would have been held entitled to levy execution against the appellants for the costs of such award. Similarly, if the award had been in his favour, he would have been entitled to claim, as the appellants now claim, under cl. 12 to enforce the award "in the same manner as a judgment or order to the same effect."

My Lords, under such circumstances as these, how can it be said that, when the act of the sovereign Power has invoked the benefits of the procedure devised by the laws of this country for enforcing its claims or settling its disputes, "international comity which induces every sovereign State to respect the independence and dignity of every other

[1924]		835
A.C.	DUFF DEVELOPMENT CO. v. KELANTAN GOVERNMENT. (H.L.(E.))	Lord Carson.

sovereign State" requires that our Courts should lend themselves to such palpable injustice as to refuse a mutual relief to both parties concerned? or how can it be suggested that under such circumstances we would be acting upon the principles laid down in the cases I have already quoted of doing complete justice between the parties if we refused the application of the appellants? I do not myself see any difference in principle between the present case and those in which cross-actions were allowed in order that both sides should receive equal justice, nor do I think we are entitled to consider each step taken for the purpose of carrying out the proceedings necessary for making the award effective as a separate invocation of the jurisdiction of the Court which required a separate submission by the sovereign State to give it jurisdiction; rather should we consider that the Government of Kelantan by agreeing to the submission which became an order of Court and taking the course they did, are bound to treat the matter as one proceeding, in which the sovereign State has waived its privileges and in which justice can alone be done by making the law applicable equally to both parties.

In my opinion, this appeal should be allowed.

Order of the Court of Appeal affirmed, and appeal dismissed with costs.

Lords' Journals, April 10, 1924.

Solicitors for the appellants: Drake, Son & Parton.

Solicitors for the respondents other than the Attorney-General: Burchells.

Solicitor for the respondent, the Attorney-General: The Treasury Solicitor.