Doctrine Of Sovereign Immunity Research Articles

Enforcement of decisions of national courts in cases of compensation for damage caused as a result of armed conflicts

The relevance of the study is due to the lack of proper legal regulation in the field of legal determination of the procedure for executing a court decision under which a foreign state (aggressor or occupier) acts as a debtor. The purpose of the study is to develop a mechanism for effective protection of the rights of Ukrainian recoverers in cases of compensation for damage by the state aggressor through the prism of proper enforcement of court decisions in these categories of cases. In the course of the study, a number of general scientific and industry methods are applied, in particular, the method of analysis and synthesis, system, structural-functional, dialectical, historical, and hermeneutical methods. The paper analyses the legal positions of the European Court of Human Rights regarding the right to appeal to the court in cases of debt collection from a foreign state as compensation for material and/or moral damage caused to individual applicants. The study examines the practice of the national courts of Ukraine in cases of claims of individuals – citizens of Ukraine against a foreign state for compensation of material and (or) moral damage caused by the invasion of the territory of Ukraine. It is established that a state cannot be allowed to use the doctrine of sovereign immunity as a shield for its violations of other doctrines of international law, such as international law on armed conflicts. The expediency of applying the model of functional (limited) immunity, which is becoming increasingly widespread and recognised by advanced countries of the world, is justified, considering its practicality and compliance with modern requirements for the development of society and leading trends in the development of international law. The results of the study can be used for further scientific developments of the outlined problems in the rule-making process, both in the conclusion of international treaties and in national legislation and in the law enforcement process in the implementation of legal proceedings

A tale of two immunities: the ongoing transition from absolute to restrictive sovereign immunity in China

ABSTRACT This article examines the doctrine of sovereign immunity and its implications in the context of China’s evolving stance on this principle. The paper delves into the historical foundations and theoretical underpinnings of sovereign immunity, distinguishing between absolute immunity and the more recent concept of restrictive immunity. The analysis focuses on China’s position on sovereign immunity, considering its historical adherence to absolute immunity and its endorsement of the United Nations Convention on Jurisdictional Immunities of States and Their Property. The paper also addresses China’s law on foreign state immunity and critically examines the impact of this law and its difference compared with the FSIA and UN Convention. Drawing on comparative legal analysis and case studies, the paper evaluates China’s shift from absolute to restrictive immunity, taking into account the interests of the private sector and the need for a fair and predictable legal framework. It explores the challenges and benefits associated with this transition, emphasizing the importance of harmonization with international legal norms and the enhancement of China’s reputation as a reliable player in global commerce. Ultimately, the paper argues that China’s transition towards restrictive immunity is not only necessary to protect its economic interests but also crucial for maintaining diplomatic credibility and fostering international cooperation. By embracing this shift, China can contribute to the harmonization of global legal norms and enhance its standing as a responsible participant in the international legal landscape.

Operation of the Doctrine of Sovereign Immunity in Contemporary World: Nigeria in Focus

In Nigeria, the sovereign power resides in the people, hence, Section 14 (2) (a) of 1999 Constitution provides that: “Sovereignty belongs to the people of Nigeria from whom the government through this Constitution derives all its power and authority.” In Nigeria, the people are the sovereign and the people exercise sovereignty through their electoral vote, and by way of constitutional government in accordance with the Constitution which is the express will of the people for the regulation of government and national life. The provisions of the Constitution are binding on all authorities and persons throughout Nigeria. The sovereignty of the people is called constitutional sovereignty. However, people usually confer upon an elected sovereign all the rights necessary to ensure peace and protection for each member of the society. Immunity is the exemption of a person or body from legal proceedings or liability. This paper examined inter-alia, the concept of sovereign immunity, which shields the actions of state in respect of its domestic affairs. This is deskbased research which relies on both primary and secondary sources of data. This paper reveals that the concept is no longer immutable in the contemporary time. The paper rounds up with concluding remarks.

The Final Chapter of the Demise of the Pure Absolute Doctrine of State Immunity in English Law: A Swedish vignette

Abstract A comment on the insight Johnny Veeder’s historical sense and the insight he derived from his research in archives gave him in understanding the final chapter of the story of the demise in the common law of the UK of the pure, absolute, doctrine of state or sovereign immunity in the I Congreso del Partido

Enforcement of Arbitral Awards Against States - a Risk to Peaceful Relations?

The aim of this paper is to present and critically appraise the norms of international law relating to the enforcement of arbitral awards against States. It canvasses the main international instruments governing the recognition and enforcement of foreign arbitral awards (notably the New York Convention). It then elucidates the doctrine of sovereign immunity in customary international law – and an attempt to codify it – as a hurdle to enforcement of such awards in domestic courts. The analysis investigates whether the doctrine acts as a safeguard against jeopardizing peaceful relations between States while promoting international commerce, foreign direct investment and trade relations between State and foreign non-State actors. Diplomatic protection is examined as an alternative to international and national adjudication

On Some Aspects Of Recognition And Enforcement Of Icsid Awards In The Republic Of Azerbaijan

The current paper analyzes recognition and enforcement procedure of ICSID Awards, namely matters of immunity from jurisdiction and immunity from recognition under legal framework established by the ICSID Convention. As such, Article 55 of the ICSID Convention regards national laws on state immunity which results in implications in enforcement of ICSID Awards. To be more precise, based on, inter alia, this provision the states have developed national rules governing application of state immunity which in absence of unified rules and practice may result in inability of winning investor to enforce the ICSID Award due to nature of property located in a state where investment is sought. Accordingly, there has been attempts to mitigate this risk by developing contractual tools for waiving sovereign immunity in case of enforcement of arbitrary award. With that said, the current paper highlights existing problems in enforcement of ICSID Awards deriving from doctrine of sovereign immunity and proceeds with analysis of the abovementioned tools as well as applicable national legislation of the Republic of Azerbaijan in order to identify provisions governing recognition and enforcement of ICSID Awards as well as those addressing the matter of sovereign immunity.

Enunciating the Effect of the Doctrine of Sovereign Immunity of States on International Arbitration

In the 21st Century States continue to be one of the main players in international business transactions. The onerous responsibility of states to provide goods and services to their citizens means that, they are by default involved in enormous commercial transactions and investment ventures. In several of these business transactions involving states for example; states and states, states and organizations, states and private individuals/companies, states overtime have adopted international arbitration as their preferred mode of dispute resolution. This is manifested especially in investment agreements and international commercial transactions involving states. However, under public international law (international personality of states) states enjoy sovereign immunity as international legal persons. Sovereign immunity is a legal doctrine by which the sovereign or the state cannot, commit a legal wrong and is immune from civil suit or criminal prosecution. This has raised the concern as to the extent to which a State involved in international arbitration can invoke the doctrine of sovereign immunity and its impact on international arbitration. Inquisitively this paper asks; Is the doctrine of sovereign immunity a threat to international arbitration? In answering these questions, this paper interrogates how various International Conventions that offer a legal framework for international arbitration have addressed these seminal issues. For example; The Convention on the Settlement of Investment Disputes between States and Nationals that was created to offer a mechanism for resolving investor state disputes.

Promoting Public Health Through State Sovereign Immunity

During the COVID-19 outbreak, the United States experienced widespread shortages of patented drugs and goods. But although states negotiated with foreign governments to obtain needed medical equipment, they were seemingly powerless to obtain or produce their own supply of scarce drugs. This Essay proposes an unorthodox solution to drug shortages during public health emergencies: states could disregard the Patent Act and directly produce or import needed patented drugs. The doctrine of state sovereign immunity shields states from having to pay damages when they violate federal law, including patent law. Moreover, courts and agencies are generally unwilling to award injunctions or other prospective relief if it disserves the public interest. State action is admittedly not a perfect solution to patent-related drug shortages and comes with a variety of costs and risks, including retaliation from the U.S. Food & Drug Administration. But at minimum, it could serve as a means for pressuring the federal government and pharmaceutical companies to work to provide drugs to the public.

The Lawsuit against the United States for Causing COVID-19

The coronavirus disease 2019 (COVID-19) presents varieties of questions concerning not only international law, but also the domestic laws of states affected by this global pandemic. One of legal issues amid COVID-19 pandemic is the state immunity principle. There have been many lawsuits against foreign state challenging the state immunity principle amid the COVID-19 pandemic. In Thailand, the Chiangmai Provincial Court (court) addressed in its judgment that it did not have jurisdiction to adjudicate the compensation for COVID-19 pandemic’s damages dispute between Thai restaurant owner and the United States (US). Notwithstanding surrounding controversies over COVID-19 pandemic, the court considered the motion denied. The main implication of the judgment is that Thailand accepted state immunity principle under customary international law. This research briefly explains the sovereign immunity doctrine relating to this case, summarizes the facts and analyses the potential ramifications of this judgement under international law.

Execution Immunities and the Effect of the Arbitration Agreement

The prevailing view in international legal practice is that a state does not waive its immunity from execution by merely consenting to arbitration. Yet, in the context of arbitration between states and private parties, execution immunities have emerged as a very significant obstacle to the effective implementation of arbitral awards. When immunity from execution allows states to escape obligations they have freely undertaken, and when it withholds from claimants the fruits of a favourable award, the benefits of arbitration become illusory. This article contends that the prevailing view is no longer compelling because, in the context of arbitration, deference to state immunity is misplaced and imposes an unjustified limit on the rule of law. It is suggested that an agreement to arbitrate should ultimately have the presumptive effect of waiving immunity from execution. The proposed waiver may be viewed as following from the obligation that the sovereign voluntarily undertakes when submitting to arbitration, and tracks the normative evolution of the relation between the doctrine of sovereign immunity and arbitration law. State Immunity, Immunity from Execution, Implied Waiver, Arbitration Agreement, Subjective Arbitrability, Santiago Resolution, Rule of Law, International Public Policy.

The Sovereignty of Finance? Distress and the Financialization of Sovereign Debt

Abstract This article argues that the relationship between finance and state sovereignty is neither automatic nor understandable in some generalized manner. To develop this argument, I pay particular attention to the financialization of distressed sovereign debt, especially sovereign debt defaults in the Global South with particular reference to Argentina’s default in 2001 and the string of legal cases it triggered. These legal processes breathed a strange after-life into Argentina’s defaulted debt by converting that debt into fully commodified financial contracts. I argue that the financialization of sovereign debt is enabled by a long and complex evolution in the application of the doctrine of restrictive sovereign immunity. This financialization, moreover, is indicative of ways in which forms of financial distress are reworked as renewed sources of financial value. This provokes questions about the very relationship between waste and value in our global political economy.

Treaties, Sovereign Immunity, and the Plan of the Convention

This paper, part of a symposium on Federal Courts and Foreign Affairs, considers a question posed by Carlos Vaszquez: should treaties be treated differently from federal statutes when determining whether they abrogate sovereign immunity? The paper first considers the question in light of current sovereign immunity doctrine, and argues that the question of treaties ought to be considered separately from that of federal statutes, and that this can be done without resort to foreign affairs exceptionalism. The paper then turns to the underlying problems with abrogation doctrine itself, arguing that these problems, while they remain largely hypothetical as to treaties, pose a major threat to the supremacy of federal law as applied to statutes.

Sovereign Immunity and Enforcement of Arbitral Awards; Breaking the Barrier

In international commercial arbitration, parties that contract with states and state agencies seek to arbitrate disputes, but an increasing problem is the attempt by these state parties to raise the defence of sovereign immunity to challenge the jurisdiction of the arbitral tribunal or to avoid the enforcement of an arbitral award. It is discouraging in handling disputes with these sovereign entities which serve as major concern particularly with the growing prospect of sovereign defaults leading to cross-border disputes. The article reviewed the judicial decision in Trendtex v. Bank of Nigeria which is critical to the sovereign immunity that spreads across the globe. Award being final and binding as agreed in the parties’ agreement should always be honoured. The article discovered that many states always resulted to the sovereign immunity doctrine in order to prevent the enforcement of arbitral awards. This article found that if this continues it may wreck and discourage the cooperation between the investors and the state agencies because investors prefer enforceable arbitration to litigation. The article concluded that by the practice of arbitration, it is honourable for states to allow enforcement of arbitral awards against their states or state agencies for the upliftment of global arbitration. The article recommended that states that have not ratified the New York Convention should do so and also the NYC should be amended to provide that any state party to the NYC has automatically waived the right to claim sovereign immunity when the issue of enforcement of award comes up.

Brief of Professors William Baude and Stephen E. Sachs as Amici Curiae in Support of Neither Party, Franchise Tax Board v. Hyatt

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them. Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution’s enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hall properly rejected the argument that there is a “federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted.” Hall went too far, however, in denying that “the Constitution places any limit on the exercise of one State’s power to authorize its courts to assert jurisdiction over another State,” and in reducing sister-state immunity to a “matter of comity.” In particular, Hall was likely wrong to assume that a State’s abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts. In an appropriate case, these principles might justify revisiting and narrowing portions of Hall. Yet this case is a poor vehicle for doing so. Because the case has been improperly framed by the parties and cannot be resolved properly without further briefing, the Court should dismiss the writ as improvidently granted. Alternatively, it should dismiss for lack of jurisdiction—or, if satisfied of its jurisdiction, should affirm.

Internationalization with backward international law

This article discusses a mechanism for dispute resolution, called the “China model,” for newly-launched panda bonds. This China model contemplates a two-step approach for resolving disputes between Chinese bond investors and foreign sovereign issuers; namely, arbitration in China to settle disputes between the two sides and enforcement of Chinese arbitral awards by courts of foreign sovereigns. This article argues that the existence of the China model reflects a deep tension between China’s goal of internationalization and the backwardness of its international law regime. This is evidenced by China’s adoption of an absolute doctrine of sovereign immunity, which prevents Chinese courts from accepting disputes against foreign sovereigns and was abandoned by developed countries many decades ago. This article further discusses three factors that contribute to the backwardness of China’s international law regime: the continuing impact of historical debt disputes, within which China still defends itself using the absolute immunity doctrine; the failure of China’s approach to rely on international convention to change its position on sovereign immunity; and the challenge of drafting a comprehensive sovereign immunity statute in China due to lack of support among stakeholders within the country.

Sovereign Immunity and Its Development in International Law

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution . In constitutional monarchies, the sovereign is the historical origin of the authority, which creates the courts. By this, the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. However, one has to not to be confused with the principle of public international law that the government of a state is normally not amenable before the courts of another state. This research critically examines the doctrine of sovereign immunity, which is no longer reflects the world we live in, as it doesn't accurately reflect the reduced importance of governments compared to private actors. There is an argument that this doctrine should be eliminated.

Shielded by Sovereignty: The Impact for Patentees of Covidien v. University of Florida Research Foundation

This Article reviews both the recent history of the Patent Trial & Appeal Board's Inter Partes Review proceedings and the history of the doctrine of sovereign immunity as it relates to state entities such as public universities, as well as other sovereigns such as Native American nations. After addressing the specific holdings in the PTAB's recent decisions in Covidien v. University of Florida Research Foundation, Neochord v. University of Maryland, and Reactive Surfaces v. Toyota, this Article then discusses the various steps (some potentially drastic) that non-state-actor patent holders might take in order to try to insulate their patents from post-grant review proceedings at the PTAB under the Board’s reasoning. Finally, this Article considers some of the potential risks of such strategies, ranging from contrary decisions by the PTAB or superseding decisions by the Federal Circuit or Supreme Court to the danger of losing control of the patents at issue.

The Historical Argument for State Sovereign Immunity in Bankruptcy Proceedings

This article addresses an anomaly in bankruptcy and sovereign immunity jurisprudence by drawing upon historical sources from America’s Founding Era and earlier. In the 2006 decision Central Virginia Community College v. Katz, the Supreme Court departed from its previous sovereign immunity decisions to hold that states lack the protection of sovereign immunity in proceedings arising under the Bankruptcy Clause. This article argues that the Katz decision unnecessarily upsets established sovereign immunity doctrine through a flawed interpretation of the Framers’ conception of the congressional bankruptcy power and state sovereign immunity in a federal system. It reveals this jurisprudential error through a detailed study of the historical development of bankruptcy law as well as the constitutional bankruptcy power’s origins, historical context, and contemporary application.

The New Tate Letter: Foreign Official Immunity and the Case for a Statutory Fix

Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) — a 1976 statute governing the immunity of foreign states — did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of the sensitive foreign policy implications of these types of cases, the executive branch — specifically the State Department — has aggressively asserted control over all foreign official immunity requests. In 2012, in the so-called “Rosenberg Statement” and “Koh Letter,” the Justice Department and Legal Adviser to the State Department, Harold Hongju Koh, declared that (1) federal courts must refrain from deciding any foreign official immunity request that was not first presented to the State Department and (2) it was for the Executive, not the courts, to evaluate whether a foreign individual acted in an official capacity.While the Executive is certainly the branch of government with principal responsibility for foreign affairs, the Koh Letter and Rosenberg Statement represent executive branch overreach into judicial supervision of a federal lawsuit. Judicial deference to the Executive on foreign official immunity calls may be proper; blind obedience is not. In fact, such unilateral control ultimately hurts the State Department itself, which must balance complex and countervailing foreign policy interests. So how should the Executive’s power play be answered? Despite the Supreme Court’s reference to judge- made federal common law in Samantar, this Note argues that the tug-of-war between the executive and judicial branches requires congressional action because the courts are in disarray, with some already having acquiesced to executive control. The current disorder is a striking replay of what happened in the doctrine of foreign sovereign immunity in the late 1950s and 1960s in the aftermath of the 1952 Tate Letter — an earlier dispatch from a different State Department Legal Advisor that sparked such confusion in the federal common law of foreign sovereign immunity that Congress was compelled to intervene with the FSIA. This Note concludes with a model statute that Congress should consider enacting.

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule, a “backdrop,” that is not directly incorporated into the Constitution but is shielded by the Constitution from most kinds of change.That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt the Court nearly overruled Hall, and its future hangs by a single vote. The backdrops theory suggests that Nevada v. Hall is rightly decided, consistent with modern doctrine, and should not be overruled.