The New French Legislation on State Immunities from Enforcement

Abstract

The French legislative changes on State immunities fromenforcement brought by the Loi Sapin II are a compromise between the protection of State property against illegal enforcement measures, in particular through the requirement for a prior judicial authorization for such measures, and the creditors’ right to the enforcement of their claims, as provided under the European Convention on Human Rights. Creditors are now sheltered from the fluctuations in case law, as shown in particular in the NML and Commisimpex judicial sagas, but the drafting of appropriate waiver clauses remains crucial, particularly since these legislative changes have a considerable impact on the enforcement of international arbitration awards in France. Indeed, Section L.111-1-2 marks the end of the flexible approach allowed under the ruling by the Cour de cassation in Creighton, whereby waivers of immunity from enforcement could be tacitly inferred from the mere consent of the State to submit to arbitration. Nevertheless, the Loi Sapin II, as it applies to sovereign immunity, is not a comprehensive set of rules, with only three new Sections incorporated in the Code of Civil Procedures of Enforcement, and therefore still leaves room for interpretation and further developments in French case law.