Abstract
AbstractThe interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.
Highlights
States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts
This Article seeks to address that question by arguing that the international legal principle of state immunity is emerging as a rule lex specialis to a more general set of rules or principles concerning “enforcement jurisdiction” of national courts in respect of international arbitral tribunals
The tool of “lex specialis” as a mechanism for placing special “secondary” rules within the context of a more general set of rules has been explored by Simma and Pulkowski in their article “SelfContained Regimes in International Law.”9 This is generally the idea that there may be “special” regimes of law which operate within the context of a more general set of rules, with the consequence that that general set of rules applies residually when the special set of rules are at play
Summary
From the perspective of public international law, adjudicative jurisdiction is no more than a facet of a state’s prescriptive jurisdiction—its authority to adopt laws. Any wider contribution of national courts to international law beyond interpreting national laws may be doubted, at least from the perspective of viewing national courts decisions as merely interpretative or declaratory of international law. The same approach is taken in private international law, where court jurisdiction is usually analyzed from the internal perspective of the sovereign state. This article instead takes an approach which cuts across public and private international law, considering the extent to which adjudicative jurisdiction may be declaratory of norms of enforcement jurisdiction from the perspective of “harmonization” of law. Considered a source of any potential public international law “rule” or “principle.” This approach will be developed throughout this Article with a view to demonstrating its utility in understanding the scope of enforcement jurisdiction of states, as exercised through their courts, in the context of international arbitration. This Article adopts the functional comparative method to identify any consistent practice between the chosen courts.. There are various harmonizing instruments relating to the scope of enforcement powers of national courts in the context of international arbitrations, whether between private parties or states: The United Nations Commission on International Trade Law (‘UNCITRAL’) Model Law on International Commercial Arbitration—as amended in 2006—22the Convention on the Recognition and Enforcement of Arbitral Awards, and the UN Convention on Jurisdictional Immunities of States and Their Properties. To examine the harmonization of any common national court approaches, the extent to which four representative state approaches to adjudicative jurisdiction are reflective of any enforcement norms will be examined in light of these harmonizing instruments: UK (as a non-federal common law State), US (federal common law), France (non-federal (civil law), and Germany (federal civil law and UNCITRAL Model Law)
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