Firebirds and Island Republics

Commerciality prevails in enforcing a foreign judgment against a foreign State in Australia

Litigation Update

The recent decision of the High Court of Australia in Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 brings the Australian approach to enforcement of foreign judgments against assets of a foreign State in Australia in line with international consensus. This is a welcome clarification of the Australian approach to the doctrine of foreign State immunity in respect of proceedings concerning underlying commercial transactions, and confirms that the Court will look to the context of any proceedings to establish whether or not a commercial transaction exists. The judgment also serves as a useful guideline for foreign States with assets in Australia against which foreign judgments may be enforced, and for commercial entities that transact with such States.