Abstract
Sovereign assets receive restrictive sovereign immunity based on their purpose and/or use for execution of States’ commercial liabilities. The forum States’ courts decide the question of immunity of these assets. Due to lack of effective international conventions, these judgements result at inconsistent outcomes. Rule of law can be applied to mitigate this inconsistency. However, the objectives of rule of law vary for the national and the international legal order. Moreover, the divergence in group-interests of States and mandate of international organizations have failed to agree on a uniform definition of international rule of law. Thereby, this paper suggests international law-based rule of law as an alternative approach. International law-based rule of law aims at achieving the same objectives as domestic legal order, but, by the tools of international laws. Finally, it proposes to develop an inter-States consensus-based model law to have uniform principles of sovereign assets’ immunity in international law.
Highlights
In the case of AF-CAP INC. v. the Republic of Congo,[1] the Republic of Congo defaulted on its debt payment
This paper focuses on the international rule of law in determining the questions of immunity of sovereign assets and possible alternative approach to international law-based rule of law
This paper looks for the coherent understanding of international rule of law
Summary
In the case of AF-CAP INC. v. the Republic of Congo,[1] the Republic of Congo defaulted on its debt payment. The inherent nature of sovereignty granted the immunity to the foreign State party from proceeding before any national court. Such absolute sovereign immunity is no longer available for private acts of States. Sovereign immunity from execution, the debtor State enjoys immunity before any foreign courts and its assets are protected from attachment with the exceptions of commercial assets. Few international conventions and non-binding drafts have listed the sovereign assets following the question of immunity from execution. The fourth part of the paper concentrates on the role of international rule of law in determining the question of immunity of foreign sovereign assets. In the concluding remaking, it poses certain open questions of the international rule of law and international law-based rule of law while defining the targeted assets based on their legal definitions in international law
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