Game, set and match for Boris Becker’s bankruptcy?

Boris Becker

Three-time men’s single Wimbledon champion Boris Becker was declared bankrupt on 21 June 2017.

London-based private bankers Arbuthnot Latham & Co (“ALC”) petitioned for bankruptcy following what appears to be protracted disputes dating back to 2015.

Just over a year since the bankruptcy order, lawyers acting on behalf of Becker are trying to argue that Becker’s position in the Central African Republic (CAR) as attaché to the EU on sporting, cultural and humanitarian affairs, - which he has held since April 2018, affords him immunity from bankruptcy proceedings. This is based on the provisions contained within the Vienna Convention on Diplomatic Relations, which was enacted into UK law under the Diplomatic Privileges Act 1964 (“the DPA”).

Is Becker able to avoid his obligations because of this new development?

CAR’s Position

It is worth mentioning that Becker may not even hold a diplomatic position in the first place!

Cherubin Moroubama, the CAR’s foreign ministry’s chief of staff told international news agency Agence-France Presse that the diplomatic passport that Becker owns is actually fake. He alleges that the document’s serial number is the same number as one of a batch of passports which were stolen in 2014.

Nobody seems to know whether these allegations are true. However, if they are, it is highly unlikely that claiming diplomatic immunity would provide a viable defence against Becker’s bankruptcy proceedings.

Legality of diplomatic immunity

The DPA 1964 incorporates various clauses of the Vienna Convention into UK law.

Schedule 1, Article 31 of the Vienna Convention states that “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction”.

Becker’s lawyers are trying to argue that “…he [Becker] cannot be subject to legal process in the courts of any country for so long as he remains a recognised diplomatic agent."

However, section (c) of Article 31 provides that the immunity does not apply to cases relating to any “professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Arguably, Becker’s’ personal debts do not fall into a category which relates to his official functions.

Eileen Denza, in “Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations”, makes reference to the Vienna Conference held in 1961, which provided further clarity as to how 31(1)(c) should be interpreted. Denza notes that whilst 31(1)(c) is drafted with a wide scope, it is not intended to encompass contracts which are “incidental to the ordinary conduct of life in the receiving State”. Steven N. Morris, in “The tax liability of foreign diplomats in the United Kingdom”, takes Denza’s comments further, and provides some specific examples of how certain contracts should be interpreted. For instance, activities of a diplomat on the Stock Exchange would come under the exception, whereas “contracts of a personal loan would not”.

Conclusion

Becker is clearly trying to use his diplomatic position to avoid his bankruptcy debts and the obligations placed on him by his bankruptcy. Before Becker can even consider using this argument, the CAR will firstly need to revise the validity of his position and determine if his appointment is even legitimate.

Nevertheless, based on the wording of Vienna Convention and the supporting commentary, it is clear that Becker’s creditors will include a “personal loan” (i.e. the petition debt), which is purely incidental to his role as a diplomat. As such, even if he is a diplomat, this is unlikely to afford him immunity against bankruptcy as was evidenced when the Court indefinitely suspended his automatic discharge from bankruptcy last week!