A foreign state wishes to lease your German building for embassy premises. The offer includes a lease agreement, a contact person and a German jurisdiction clause. You want to know whether you can rely on enforcing outstanding payments or a later return as in an ordinary tenancy. Before consenting, this matter requires an expressly targeted expert review commission.
This article deals with the leasing to a foreign state for a diplomatic mission in Germany. A privately rented flat for an individual employee and consular special cases are not the same situation worked out here.
First record contracting party and intended use
Our editorial recommendation: Have the precisely designated legal person, the signing authority and their power to make the intended declaration examined in a verifiable way. The name of an embassy on a letter does not alone answer who takes on the contractual obligations. Submit the complete draft, annexes and the actually intended use together.
Describe which rooms are affected and whether official mission use or another use is planned. A common commercial description in the exposé does not decide this question. Equally, an as-yet unresolved status indication in the offer is not confirmed by you yourself as diplomatic recognition.
Distinguish ownership and diplomatic functional protection
The Vienna Convention defines mission premises regardless of who owns them. Article 22 specially protects these premises and also covers immunity from enforcement measures. [MISSION] Therefore, your private ownership does not mean that any possible protection in a lease to a mission would be irrelevant.
The Federal Foreign Office continues to list the Vienna Conventions as central foundations of diplomatic and consular law and refers to supplementary customary law. [EINORDNUNG] Whether the specifically offered use and the actual premises fall under this belongs in the expert review. Plan access for maintenance, interruptions and later return on this clarified basis; improvised possession measures are not a prepared solution.
Commission two different enforcement questions
The first question is whether and by what route a concrete claim can be adjudicated by a court. The second concerns the actual enforcement of a decision. Section 20(2) GVG refers for exemptions from German jurisdiction among other things to international law bases. [GERICHTSBARKEIT]
The Federal Constitutional Court separates in decision 2 BvM 9/03 the immunity examination in the substantive proceedings from the enforcement examination. A missing obstacle at the first level does not automatically answer the second. It also distinguishes general state immunity and special diplomatic protection. [TRENNUNG] Please therefore request advice with separate answers for payment and return, instead of only a review of the jurisdiction clause.
Do not treat a general waiver formulation yourself as a guarantee
The decision in question concerned government bonds and embassy accounts. The court did not establish a general rule of international law that a merely blanket waiver of immunity already removes the special protection of assets serving diplomatic purposes. [TRENNUNG] The case does not decide your lease agreement. But it shows why a general sentence about waiver does not provide enforceability you have confirmed yourself.
Have it examined specifically for intended securities and declarations who may give them, which transaction they concern and what scope they have. A template invented here would not be a reliable contractual design. Even a high promised security amount will not be treated as already available as long as its actual agreement and usability are unresolved.
Hypothetical case: The jurisdiction clause should solve all questions
An owner receives a draft for officially used embassy premises. Because of the German jurisdiction clause she assumes that a later judgment automatically permits the usual access. Her commission to the legal advice hitherto only asked to look at the rent level and term.
She supplements the commission with contracting party, intended mission connection, separate enforcement questions and the concrete security arrangement. The return planning is also explicitly included. The example does not claim that such a contract is fundamentally unsuitable, nor that any particular addition would remove all obstacles.
Decide only with declared residual risk
Your decision dossier should ultimately show which claims and usage procedures were examined, which declarations actually exist and which enforcement point remains open. Building law use, insurance and tax treatment are additional separate matters for review.
If an economically decisive assumption is unresolved, the question of consent also remains open. The special interest of a state tenant does not replace the concrete declaration of which obligations you enter into and how you could actually pursue their fulfilment in case of difficulties.