The Current State of the Law

Abstract

The survey of the provisions of the Convention and the six national statutes conducted in the preceding chapters was focused on the various possible sources of private rights and obligations for a foreign state. Its results show that in all categories the areas reserved for immunity are either non-existent or, with regard to two sources of obligations under only two of the seven instruments, very restrictively defined. Under all seven instruments there is no immunity for the foreign state with regard to its contractual obligations, by far the most important and the most frequent source of claims leading to transnational disputes. With regard to torts attributable to a foreign state which can properly be brought before the local courts, there is also no immunity whatsoever under five of the six national statutes, the exception being the Pakistani Ordinance which is silent on torts, and only a very limited immunity under the Convention available only to a foreign state having no office, agency or other establishment in the state of the forum with regard only to torts resulting in purely non-material injury. The practical incidence of this immunity is likely to be minimal.