Foreign states’ immunity from execution in light of the French Supreme Court decision of 12 June 2025
Stéphane de Navacelle, Managing Partner
Navacelle, Paris
sdenavacelle@navacellelaw.com
Maxime Desplats, Partner
Navacelle, Paris
mdesplats@navacelle.law
Louna Gaudey-Montaland, Trainee lawyer
Navacelle, Paris
Currently, states are regular defendants before a number of judicial fora. For example, they frequently appear before arbitral tribunals in a wide range of fields, including investment or international trade. Yet, when an arbitral tribunal hands down an award against a state, it often represents only a partial victory for the prevailing creditor when the state fails to comply wilfully with the tribunal’s decision. Despite holding an enforceable award, creditors often encounter significant hurdles at the enforcement stage. Not only do they classically have to trace their debtors’ assets but they also have to deal with the additional constraints arising from the doctrine of state immunity. Indeed, creditors generally face immunity from execution, rendering compulsory enforcement particularly difficult.
The long-running dispute opposing the import–export company Commisimpex to the Republic of the Congo perfectly illustrates these challenges. In 2013, an arbitral tribunal ordered the Republic of the Congo to pay over €220 million to Commisimpex in connection with unpaid public works contracts.[1] As the Republic of Congo refused to comply with that award, in 2016, Commisimpex attempted to seize and auction buildings belonging to the Republic of the Congo and located in France. The defending state challenged the validity of the seizures and argued that in light of its immunity from execution, the said seizures were null as they were made against properties used for diplomatic purposes. The dispute eventually ended up before the French Cour de cassation, which handed down its decision on 12 June 2025.
In its ruling, the Second Civil Chamber of the Cour de cassation, after seeking the advisory opinion of the First Civil Chamber, adopted a pragmatic evidentiary approach to determine whether state-owned property is allocated for diplomatic purposes. The Court held that the sovereign immunity from execution with respect to property characterised as diplomatic may be set aside if the creditor provides evidence to the contrary, namely, where the creditor demonstrates that the property does not in fact serve the alleged diplomatic function.
Intended as clarifying the existing legal framework, this decision identifies both the legal means available to states to preserve the immunity of their property from seizure as well as the evidence available to creditors to rebut claims of diplomatic allocation.
The codification of foreign states’ immunity from execution under the Sapin II Law
The Sapin II Law of December 2016 substantially reshaped the regime governing the enforcement of judgments and arbitral awards against foreign states in France. Until that law, judges had designed the legal regime governing sovereign immunities from execution. The Sapin II Law modified this regime with the insertion of Articles L.111-1-1 to L.111-1-3 within the Code of Civil Enforcement Procedures. This modification substantially enhanced the protection of state immunities against potential creditors.
For example, any conservatory or enforcement measure directed against property belonging to a foreign State may be ordered only with prior judicial authorisation.[2]
In addition, Article L.111-1-2 of the Code of Civil Enforcement Procedures sets out three alternative conditions under which immunity from execution may be lifted. The immunity may be set aside when the state has expressly consented to the seizure or when it has allocated the targeted property to the satisfaction of the claim at issue. Lastly, a creditor may rebut the immunity if a judgment or arbitral award exists and the property concerned is used for purposes other than non-commercial public service activities and bears a sufficient connection to the state entity against which enforcement is sought.[3]
Furthermore, Article L.111-1-3 provides that property dedicated to diplomatic or consular functions is deemed immune from seizure.[4]
This statutory framework has rendered the effective recovery of state assets considerably more uncertain for creditors, even if they hold an arbitral award in their favour. The decision of 12 June 2025 fits squarely within this revised legal landscape, illustrating the circumstances under which a state’s immunity from execution may be set aside.
The recent clarification of the evidentiary framework governing the sovereign immunity from execution in the enforcement of arbitral awards
In its decision of 12 June 2025, the Second Civil Chamber of the Cour de cassation clearly articulated the framework within which a state’s immunity from execution may be overcome in favour of a creditor seeking enforcement of an arbitral award.
Initially, the Court reaffirmed that when a state asserts that one of its assets is allocated to a diplomatic mission, that assertion gives rise to a rebuttable presumption that the property is protected by immunity from execution. A creditor seeking judicial enforcement of an arbitral award thus bears the substantial burden of overcoming this presumption.[5] It is precisely this evidentiary burden that the 12 June 2025 ruling seeks to clarify.
First, the Court held that a creditor may challenge a state’s claim of diplomatic allocation by producing the response of the Protocol Department of the French Ministry of Foreign Affairs. Such a response may take the form of confirmation that no declaration has been made, an objection to the claimed allocation or the absence of prior authorisation where such authorisation is required.[6] To facilitate access to this evidence, the Court further specified that the creditor may request that the judge order the Ministry to communicate its response.[7] In the case at hand, the Cour de cassation noted that the seized property, used as the residence of the Congolese Permanent Ambassador to UNESCO, had not been the subject of any declaration to the Protocol Department of the Ministry of Foreign Affairs. Relying on this information, the Court confirmed that the seizure of the property has been lawfully carried out.[8]
Secondly, the Court held that immovable property benefiting from the exemption from property tax, provided for under article 23 of the Vienna Convention on Diplomatic Relations of 18 April 1961, must be regarded as allocated to a diplomatic mission. In the present case, one of the properties owned by the Republic of the Congo benefited from such an exemption. The Court therefore concluded that the property was immune from seizure in the context of the enforcement of the arbitral award rendered against the state.[9]
Finally, the Cour de cassation held that, to determine whether a property is used for diplomatic purposes, the presence (or absence) of the state’s flag or emblem on the targeted property is not relevant. The Court emphasised that Article 20 of the 1961 Vienna Convention grants states the right to use such symbols but does not impose any obligation to do so. In practice, this may be explained by security considerations, which may make it advisable for premises not intended to receive the public to remain anonymous.[10]
[1] Arbitral award dated 21 January 2013, https://jusmundi.com/fr/document/decision/fr-commission-import-export-s-a-c-la-republique-du-congo-award-monday-21st-january-2013#decision_5222 accessed 10 May 2026.
[2] French Code of Civil Enforcement Procedures art L.111-1-1 (‘Conservatory or enforcement measures may be imposed on property owned by a foreign State only with prior judicial authorisation, granted by order upon petition’) (unofficial translation).
[3] French Code of Civil Enforcement Procedures art L.111-1-2 (‘Conservatory or enforcement measures targeting property owned by a foreign State may be authorized by a judge only if one of the following conditions is met: (1) the State concerned has expressly consented to the application of such a measure; (2) the State concerned has reserved or allocated the property to satisfy the claim that is the subject of the proceedings; or (3) where a judgment or arbitral award has been rendered against the State concerned, and the property in question is specifically used, or intended to be used, by that State for purposes other than non-commercial public service and has a connection to the entity against which the proceedings were brought’) (unofficial translation).
[4] French Code of Civil Enforcement Procedures art L.111-1-3 (‘Conservatory or enforcement measures may not be imposed on property, including bank accounts, used or intended to be used in the exercise of the functions of a foreign State’s diplomatic mission or consular post, its special missions, or its missions to international organizations, except in cases of the express and specific waiver by the States concerned’) (unofficial translation).
[5] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘… once the State has asserted that the property is allocated to a diplomatic mission, to rebut the presumption of diplomatic allocation …’) (unofficial translation).
[6] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘… It may be rebutted only by the opinion of the Protocol Department of the Ministry of Foreign Affairs indicating that no declaration of allocation was received, that it objected to the allocation, or, with respect to offices located in places other than those where the mission itself is established, that no authorization was granted’) (unofficial translation).
[7] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘… The creditor may submit a request to the enforcement judge in order to obtain communication of the response’) (unofficial translation).
[8] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘From these findings and statements alone, establishing the existence of a presumption of diplomatic allocation that the creditor had rebutted through the response of the Ministry of Foreign Affairs indicating that no allocation declaration had been received, the Court of Appeal correctly concluded, without shifting the evidentiary burden borne by the creditor, that nothing in Article L.111-1-2(3) of the French Code of Civil Enforcement Procedures barred the seizure of the property’) (unofficial translation).
[9] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘The Court of Appeal noted that the Republic of the Congo argued that the building located at [Address 13] in [Locality 10] houses the Congo’s pay office and asserted that this property benefits from a property tax exemption under Article 23 of the Vienna Convention. It follows from the principle of the singular status of the property in question that its diplomatic allocation, and consequently its immunity from seizure, must be recognized’) (unofficial translation).
[10] Cour de cassation, 12 June 2025, court docket no 21-11.991 (‘Regarding flags and emblems, there is no specific case law concerning Article 20 of the Convention, which should be emphasized as creating a right rather than an obligation of identification. Since the allocation results solely from the mutual consent of the States, and security considerations may make it advisable for premises not intended for public access to remain anonymous, it follows that the presence or absence of the accrediting State’s flag or emblem on the property at issue is legally irrelevant’).