Mohamed v Breish & Ors

Factual and Procedural Background

This appeal concerns the application and scope of the "one voice" principle in English law, which requires the English courts to treat a foreign government recognised by Her Majesty's Government (HMG) as the sole sovereign authority for the purposes of disputes before the court. The case arises from competing claims to the chairmanship of the Libyan Investment Authority ("LIA"), Libya's sovereign wealth fund, following the political turmoil after the fall of Colonel Gaddafi's regime in 2011.

After the 2011 revolution, Libya experienced ongoing factional conflict with multiple rival governments claiming legitimacy, including the National Transitional Council ("NTC"), the General National Congress ("GNC"), the House of Representatives ("HoR"), and, following the 2015 Libyan Political Agreement ("LPA"), the Government of National Accord ("GNA") led by a Presidency Council ("PC"). HMG and the United Nations have recognised the GNA as the legitimate executive authority since at least 2017.

The LIA's control is contested by four rival claimants to the chairmanship, each appointed or claiming appointment by different Libyan authorities or governments. Litigation in the English courts has centred on which claimant is validly appointed to control the LIA's assets held in England ("the English Assets"). Due to uncertainty over leadership, receivership orders have been made over the assets, with the Receivers and Managers acting neutrally in the proceedings.

The proceedings involved applications by one claimant ("Dr Mahmoud") seeking declarations of valid appointment and authority to control the LIA's English Assets, with other claimants ("Mr Breish" and "Dr Hussein") contesting his appointment. The English court sought and received formal letters from the Foreign and Commonwealth Office ("FCO") confirming HMG's recognition of the GNA and PC as the legitimate executive authorities of Libya. The court made a series of orders and judgments addressing the issue of recognition and the validity of the appointments under Libyan law, including striking out certain challenges based on the "one voice" principle.

Legal Issues Presented

1. Whether the English court is bound by the "one voice" principle to treat the Government of National Accord and Presidency Council as the sole legitimate executive authority of Libya for the purposes of this litigation.
2. Whether challenges to the validity of appointments made by the recognised government under Libyan law, specifically the "vote of confidence" issue and the "consultation/approval" issue, are precluded by the one voice principle.
3. The scope and effect of HMG's recognition of a foreign government in English courts, particularly regarding the recognition of de facto governments and the constitutional lawfulness of such governments under local law.

Arguments of the Parties

Appellants' Arguments

• The one voice principle does not prevent the court from examining the lawfulness of acts of the recognised government under local law.
• The "vote of confidence" challenge asserts that the GNA and PC are not validly constituted because the HoR has not passed the required vote of confidence under the LPA, rendering Resolution 12 invalid under Libyan law.
• The "consultation/approval" challenge contends that the HoR forms part of the executive authority and must be consulted or approve appointments to the Board of Trustees of the LIA, which was not done.
• Challenges to the validity of appointments should be permitted as necessary to determine the rights and obligations of the parties under applicable Libyan law.
• Criticism of the way FCO letters were procured, suggesting possible unfairness due to private meetings and limited opportunity for other parties to present their views.
• Suggested that the one voice principle should be distinguished from other doctrines such as foreign act of state and non-justiciability, and that the court should be able to consider constitutional lawfulness issues.
• Invited comparative law analysis of recognition practices in other jurisdictions.

Respondent's Arguments

• The one voice principle requires the court to accept HMG’s recognition of the GNA and PC as the sole executive authority of Libya without permitting challenges to their constitutional validity under Libyan law.
• Challenges that assert the GNA is not the lawful government, such as the vote of confidence and consultation/approval issues, are precluded because they conflict with HMG’s recognition and would require the court to speak with a "second voice".
• Recognition of a foreign government by HMG is binding on the court as a matter of constitutional law and separation of powers, and cannot be questioned or undermined by the court.
• Acts of a recognised foreign government must be treated as lawful acts of a sovereign government, regardless of any alleged constitutional unlawfulness under local law.
• FCO letters and public statements by HMG and the United Nations clearly and unequivocally recognise the GNA and PC as the legitimate executive authorities of Libya, including oversight of the LIA.
• The one voice principle is distinct from other doctrines such as foreign act of state and immunities and is founded on the prerogative of the Crown to decide recognition.
• The challenges advanced by the appellants essentially seek to deny the existence of the recognised government and thus are impermissible.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that HMG's unequivocal recognition of the GNA and PC as the legitimate executive authorities of Libya engages the one voice principle, which requires the English courts to treat the GNA and PC as the sole government for all relevant legal purposes. This recognition, evidenced by formal letters from the FCO and supported by public statements from HMG and the United Nations, binds the court constitutionally and precludes it from questioning the existence or legitimacy of the GNA as the government.

The court analysed the appellants' challenges to the validity of certain resolutions under Libyan law, specifically the "vote of confidence" issue and the "consultation/approval" issue. It held that these challenges effectively dispute the existence or lawful constitution of the recognised government itself rather than merely contesting particular acts taken by the government. Such challenges are impermissible under the one voice principle because they conflict with the executive's recognition and would require the court to "speak with two voices."

The court distinguished permissible challenges to acts of a recognised government that do not impugn its status (such as abuse of power or procedural irregularities) from impermissible challenges that deny the government's sovereignty or lawful existence. It relied on established case law demonstrating that recognition of a de facto government binds the courts to treat its acts as sovereign acts, regardless of constitutional defects under local law.

The court rejected arguments that the one voice principle is merely a rule of evidence or that it should be limited to recognition and not extend to the validity of acts. It emphasised the constitutional allocation of powers in the UK, whereby recognition of foreign governments is exclusively the executive's prerogative and courts must abide by that recognition without qualification or contradiction.

The court further clarified that the one voice principle is distinct from other doctrines such as foreign act of state, non-justiciability, and sovereign immunity, none of which were determinative in this appeal. It also dismissed suggestions that the FCO letters were unfairly procured or that comparative foreign law should influence the interpretation of the principle in English law.

Accordingly, the court concluded that the appellants' challenges based on the vote of confidence and consultation/approval issues are precluded by the one voice principle and were rightly struck out by the lower court judge.

Holding and Implications

The court DISMISSED THE APPEALS, affirming the lower court's decision to strike out challenges that undermine the recognition of the Government of National Accord and Presidency Council as the sole legitimate executive authority of Libya.

The direct effect of this decision is that the English courts will continue to treat the GNA and PC as the lawful government of Libya for the purposes of the litigation concerning the Libyan Investment Authority and its English Assets. This prevents litigants from challenging the constitutional validity of the recognised government under Libyan law in English courts when such challenges conflict with HMG's recognition.

No new precedent was set beyond reaffirming and applying the well-established one voice principle and the constitutional separation of powers governing recognition of foreign governments in English law.