Foreign State Immunity Research Articles

Актуальные тенденции в законодательстве Китая о международном арбитраже

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the pro-arbitration approach.

The Second Session of the 14th National People's Congress: Outcomes of China's Legislative Development in 2023

The regular (second) session of the 14th National People's Congress (NPC), held in March 2024, summarized the key outcomes of China's socio-economic and legislative development in the second year following the 20th CPC National Congress (October 2022). According to established tradition, the third plenum of the 20th Central Committee of the CPC should have been held on the eve of the parliamentary session, with its decisions typically focusing on the country's economic development. In turn, the decisions of the NPC are based on the work of the plenum, often taking the form of laws. However, in 2024, although the plenum did not take place, the NPC session proceeded as scheduled, with no changes to its working agenda. In the report of the State Council’s Premier, it was noted that China's GDP growth reached 5.2 %, one of the highest figures among both developing and developed countries. In the legislative sphere, in 2023, the Chinese parliament, represented by the Standing Committee of the NPC, passed a number of important laws for the country's legal system, and several existing laws were amended. Of particular note are the Law on Foreign Relations, which outlines the key principles of China's foreign policy, and the Law on the Immunity of Foreign States, which replaced the previously existing principle of "absolute immunity" with "limited immunity." In the fight against corruption, significant changes were made through the 12th amendments to the Criminal Law of the PRC. Additionally, legislative decisions focused on developing a mechanism to counter growing challenges and threats to Chinese statehood, finding adequate responses to sanction policies, implementing measures to create a stable financial and banking system, and strengthening the military amid rising tensions in the Taiwan Strait and the South China Sea.

Foreign State Immunity Law of China: A Preliminary Appraisal

Foreign State Immunity Law of China: A Preliminary Appraisal

China's Foreign State Immunity Law: A View from the United States

On September 1, 2023, the Standing Committee of the National People's Congress promulgated the Foreign State Immunity Law (FSIL) of the People's Republic of China, which adopts the restrictive theory of foreign state immunity. This article has two goals. First, the article introduces China's FSIL to English language readers by explaining its provisions in some detail. Second, the article provides a U.S. perspective on the FSIL by comparing it to the U.S. Foreign Sovereign Immunities Act (FSIA) and discussing the U.S. experience with foreign state immunity.

The Foreign State Immunity Law of the People's Republic of China

On September 1, 2023, the Standing Committee of the National People's Congress promulgated the Foreign State Immunity Law of the People's Republic of China (FSIL), which entered into force on January 1, 2024. The law abandons China's prior adherence to the absolute theory of state immunity and instead adopts the restrictive theory followed by most other countries. Under the restrictive theory, foreign states are immune from suits based on their governmental acts (acta jure imperii) but are subject to suits based on their non-governmental acts (acta jure gestionis).

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.

Peculiarities of consideration of court cases related to the limitation of jurisdictional immunity of the state

The article examines the issue of defining the specifics of the procedure for consideration of civil cases by a court of claims against a foreign state, which are related to the limitation of the jurisdictional immunity of the state. The authors analyzed the content of the European Convention on State Immunities of 1972 and the UN Convention on Jurisdictional Immunities of States and Their Property of 2004, the provisions recognized by international and national courts as reflecting norms of customary international law. Attention is drawn to the fact that, in addition to defining the form in which the state may waive immunity, the list of categories of cases in which the state does not enjoy immunity in the court of another participating state, the specified international acts also establish the procedural rules for the trial of relevant cases, in particular requirements for mandatory informing of a foreign state about a lawsuit filed against it and the results of its consideration. It is noted that by the norms of customary international law, in the case of non-application of the jurisdictional immunity of the defendant foreign state, one of the mandatory components of the procedure for consideration of the claim against the defendant foreign state by the court is the proper notification of the defendant foreign state about the allegations presented to it and about the results of their consideration by the court. Failure to comply with the above procedural requirements may create obstacles to the further implementation of court decisions in relevant cases regarding the possibility of applying these court decisions for enforcement on the territory of other states. It is noted that in cases of compensation for damage caused to the life, health, and property of natural persons because of the armed aggression of the Russian Federation, the position of the Civil Court of Cassation as part of the Supreme Court on the lack of need to notify the defendant country of legal proceedings on the relevant claims is controversial. Attention is drawn to the fact that the relevant practice of national courts is carried out in violation of the rules of formal, substantive, and procedural justice institutionalized by the international community, limits the legitimate interests of persons who have suffered damage from military aggression, transferring their rights to the status of legitimate expectations, as it can have negative consequences for the implementation of judicial decisions, taking into account the analyzed provisions of international law. A conclusion was drawn on the need to settle the issue of notification of the respondent state in cases of compensation for damage caused to the life, health, and property of individuals because of the armed aggression of the Russian Federation.

Foreign state immunity in the context of Russia’s full-scale aggression against Ukraine

The article aimed to find ways to restrict Russia’s right to State immunity legitimately. However, the study of international legal acts and national legislation of Ukraine using the methods of systematic analysis and formal legal and comparative legal methods proved the difficulty in solving this task. Thus, in Russia’s aggression against Ukraine, the latter is not obliged to comply with the doctrine of State immunity to Russia. This is due to economic and social expediency, the principle of mirroring international relations, and the inevitability of punishment for war crimes against another State and for violating international criminal law. Therefore, the article proposes legitimate restriction of Russia’s State immunity for Ukraine and third countries. For Ukraine, the solution to this problem lies in the legislative consolidation of a direct exception to the doctrine of State immunity to any aggressor state, including Russia. For any third country, the solution to this problem is either changing national legislation or concluding bilateral agreements with Ukraine. This will allow for recovery of damages at the expense of property in third countries and owned by Russia itself, its authorities and officials, or legal entities and individuals recognised as involved in the war against Ukraine.

THE ITALIAN FUND FOR THE VICTIMS OF THE THIRD REICH: CRITICAL REFLECTIONS AND A PROPOSAL FOR FUTURE REPARATION INITIATIVES

Building on the dispute between Germany and Italy over states' jurisdictional immunities, the contribution shows how Italy's recent establishment of the Restorative Trust Fund for victims of the Third Reich is not sufficient to resolve the dispute between the two states. Taking a cue from restorative models adopted domestically by various states, particularly with reference to transitional justice, the contribution outlines a model of a trust fund in favor of victims that can combine the right of access to justice with respect for immunity from the jurisdiction of the foreign state, useful for future restorative initiatives in Italy or abroad. To avoid violations of immunity, the forum state wishing to take over from the responsible foreign state for the purpose of reparation should create a grievance commission with exclusive jurisdiction over applications for access to the reparation fund, so that the proceedings are not brought by the victim against the foreign state, but directly with respect to the reparation fund. The contribution explains why this procedure is not contrary to foreign state immunity with reference to the concept of indirect impleading in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of States and their Property. The decisions of a grievance commission would not bring into play the immunity from the jurisdiction of the foreign state as long as they do not affect the property, rights and interests of the latter in the domestic system of the forum state. To this end, the commission's decisions-executable on the ground, subject, therefore, to the property of the foreign state-should be drafted in the form of a finding of victim status, not a finding of responsibility of the foreign state. In order to provide victims with full access to justice, on the other hand, it is necessary for the decisions of the grievance commission to be appealable to ordinary courts.

James Crawford and the Law of State Immunity

Abstract In James Crawford’s later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity (‘ALRC 24’), which led in due course to the Foreign States Immunities Act 1985 (Cth) (‘FSIA’) being passed by the Federal Parliament almost unchanged from Commission’s suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

Sovereign Immunity as Liminal Space

Abstract Questions of foreign state immunity frequently involve the ‘liminal space’ between substance and procedure, between domestic and international law and between the domestic law of the forum states and domestic laws of other states. US courts typically (and rightly) rest their analysis not only upon relevant foreign law and international practice but also upon procedural norms that are not formally part of the Foreign Sovereign Immunities Act. Immunity frequently implicates both the reach and power of domestic courts and the authority, organization and expectations of foreign states. It is unsurprising, therefore, that the domestic procedures of the forum court and the internal laws of both the forum state and the foreign state play significant roles in immunity determinations, although the relative paucity of concrete evidence of state practice can make it very difficult to discern the content of customary international law. ‘Restatements of domestic law’ can play an important role in developing principles of immunity, perhaps especially in the liminal spaces between domestic and foreign, substance and procedure. Hopefully, institutes in other countries will produce works like the Restatement of the Law (Fourth): The Foreign Relations Law of the United States.

Prosecuting Foreign States

In recent years, the Department of Justice has shown increased interest in prosecuting entities associated with foreign states for activities including cybercrime, economic espionage, and sanctions violations. It has also sought third-party evidence from foreign state-owned entities in connection with high-profile criminal investigations, including the Mueller investigation. These actions raise fundamental questions about the immunities of foreign states and state-owned entities from U.S. criminal proceedings. This article provides the first comprehensive analysis of—and answer to—these basic questions. In doing so, it upends the widespread but misleading perception that the Foreign Sovereign Immunities Act of 1976 (FSIA) provides the sole basis for exercising jurisdiction over foreign states in every context. The better view is that the FSIA neither authorizes nor prohibits criminal proceedings. Until Congress enacts appropriate legislation, claims to immunity from such proceedings will remain a matter of common law. The common law of foreign state immunity from criminal proceedings warrants legislative attention. First, Congress can and should make explicit that the FSIA only governs civil proceedings. Second, it should clarify that state-owned enterprises are not entitled to blanket immunity from criminal proceedings simply because they are majority-owned by foreign states. Misapplying the FSIA’s expansive definition of “foreign state” to preclude criminal proceedings can impede the effective investigation and prosecution of foreign corporations whose activities have a significant impact in the United States, and that international law does not necessarily view as entitled to immunity. The default position should be that foreign state-owned companies are subject to the criminal jurisdiction of U.S. courts, at least with respect to their commercial activities.

Conflicting Approaches to the U.S. Common Law of Foreign Official Immunity

For more than a decade, the lower federal courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials. Although the Foreign Sovereign Immunities Act comprehensively regulates the immunity of foreign states, the Supreme Court concluded in a 2010 decision, Samantar v. Yousuf, that this statute does not address the immunity of individual foreign government officials. The Court did not dispute that foreign officials are entitled to some immunity from suit, but it indicated that this immunity was to be governed by judicial application of common law rather than by statute. Provided with little guidance about how to discern and develop this body of common law, the lower courts are now divided on a number of issues relating to the scope of foreign official immunity. A key source of the division concerns how to properly conceptualize foreign official immunity. Based in part on their interpretation of a provision in the Restatement (Second) of Foreign Relations Law, some courts apply an “effect-of-judgment” approach that confers immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state. Other courts apply a broader “nature-of-act” approach, whereby immunity would apply whenever the plaintiff’s case is challenging conduct carried out on behalf of the state. This essay critiques the effect-of-judgment approach, explaining that it is difficult to reconcile with Samantar, does not take sufficient account of the foreign relations concerns implicated in suits against foreign officials, and does not constitute the best reading of the Restatement (Second). The essay also contends that, although the effect-of-judgment approach can find some support in domestic civil rights litigation, that litigation is not a useful analogue for suits brought against foreign officials.

Testimony of Chimène Keitner Before the Senate Judiciary Committee on 'The Foreign Sovereign Immunities Act, Coronavirus, and Addressing China’s Culpability'

On June 23, 2020, the Senate Judiciary Committee held a hearing Committee on “The Foreign Sovereign Immunities Act, Corona-virus, and Addressing China’s Culpability.” This document contains the written testimony of Professor Chimène Keitner, as well as responses to 39 questions for the record posed by members of the committee. Professor Keitner’s opening statement emphasized three main points. First, the United States has more to lose than any other country by removing the shield of foreign sovereign immunity for a pandemic. Second, private litigation will not bring China to the negotiating table, and it will not produce answers or compensation for U.S. victims. Instead, Congress should focus on the inadequate federal response to COVID-19, and on restoring U.S. leadership in global public health. The questions for the record covered issues including the FSIA, other obstacles to obtaining damages from civil suits, the consequences of domestic suits against foreign states, alternative methods for pursuing accountability, U.S. exposure to litigation risk, discovery of U.S. government records in cases against China, regulating live wildlife markets and the international wildlife trade, and President Trump’s praise of China’s COVID-19 response.On July 20, Senator Martha McSally (R-AZ) and seven Republican cosponsors introduced a new bill entitled the “Civil Justice for Victims of COVID Act” that combines features of previous bills introduced to amend the Foreign Sovereign Immunities Act (FSIA) “to strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel corona-virus in the United States.” A business meeting to consider the bill, along with several judicial nominations, was scheduled for July 30.

Immunity of foreign state in french practice

The article contains analyses of the immunity of foreign states in the context of French legal practice. There are also cases of adoption of new legal norms to strengthen the state immunity of France.

Can Huawei sue the US government for defamation?

This article studies the law of foreign state immunity from a comparative perspective and uses the facts of Huawei-US controversy as a test case to illustrate the differences in the laws of various jurisdictions. The US government has made a number of allegations against Huawei regarding its 5G products and services. The US has also called for the imposition of a ban on Huawei from competing for 5G contracts in a number of common law countries. As a result, Huawei’s business and its reputation are inevitably damaged. Certain allegations against Huawei’s business ethics may be difficult to support due to lack of evidence to support it. This article evaluates the threshold question of foreign state immunity to see if Huawei can sue the US government for defamation. It is concluded that state immunity would block such a claim in most common law jurisdictions, though it may be possible to sue in Canada. It would mean (1) Huawei does not have sufficient legal protection, and (2) it would imply a country may be able to use defamation as an innovative and strategic tool to interfere with commercial competition whilst it may not have any legal consequence. The position on foreign state immunity in China will be discussed for academic comparison.

Jam v. International Finance Corp.

In Jam v. International Finance Corp., the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International Finance Corporation (IFC) had argued that the IOIA, which grants international organizations the “‘same immunity’ from suit … ‘as is enjoyed by foreign governments’” (p. 15), should be understood to provide international organizations with absolute immunity, which it argued foreign governments enjoyed prior to the United States’ explicit adoption of the restrictive theory in 1952. Under the restrictive theory, a foreign state is immune from suit for its sovereign acts (acta jure imperii), but not for its commercial acts (acta jure gestionis). By interpreting language in the IOIA as granting the “same immunity” to international organizations as foreign governments enjoy at the time the suit is filed, the Supreme Court aligned the regime for IO immunity with that of foreign state immunity, except in cases where the IO's founding charter provides a different rule or where the executive branch has explicitly limited immunity. It remains to be seen what IO activities are deemed “commercial” under this regime and what types of transactions are found to have a sufficient nexus to the United States to fall within the FSIA's commercial-activity exception.

Can Huawei Sue the US Government for Defamation? A Study on the Threshold of Foreign State Immunity from a Comparative Perspective

If Huawei avers that the allegations made by the US on its 5G products and services are false (especially when the allegations are spread worldwide), then it should consider suing the US government for defamation. However, can Huawei sue? Whilst a defamation claim would be blocked by foreign state immunity in most jurisdictions, this article suggests that it may be possible to sue the US government in Canada. (This article does not seek to determine whether the allegations are correct or not, especially because they involve complex technological questions and issues on national security which are not fully accessible by the ordinary public. The analysis simply assumes Huawei's denial as the basis for the academic analysis of foreign state immunity. It will highlight that some allegations may be difficult to support from a evidential perspective. It should not be seen as suggesting any country, organization, company or person is right or wrong, and is a mere academic study.) The published version can be accessed at: https://journals.sas.ac.uk/lawreview/article/view/5124

State Practices on Foreign State Immunity and Diplomatic Immunity: A Confusion of Legal Thoughts by the Nigerian Courts

State Practices on Foreign State Immunity and Diplomatic Immunity: A Confusion of Legal Thoughts by the Nigerian Courts

Restrictive Foreign Sovereign Immunity in the United Kingdom (UK): A Welcome Development in International Commercial Transactions

The doctrine of absolute foreign State immunity to a great degree, appeared to stifle commercial transactions between contracting State parties and the private sector. Statute and earlier case law both attest to the absolute immunity of foreign States from the English courts’ jurisdiction. However, latter dicta of the English courts under the UK State Immunity Act 1978 (SIA 1978), successfully made a distinction between instances where a State’s actions were wholly of governmental character and some actions of the government that appeared commercial in nature, with basically features, similar to normal commercial transactions entered into by private individuals and companies. This paper, after a careful and painstaking overview of recent cases, concludes that the drift towards restrictive foreign State immunity by the English courts with respect to commercial transactions entered into by States, is a healthy development that carries the advantage of creating greater transparency, which in turn gives assurance to private individuals and companies that the State could be held liable for a breach of its commercial contractual obligations. Without this development, governments such as the Chinese government, which is basically operating as a “commercial/business conglomerate”, can argue State immunity in disputes involving commercial transactions entered into between the Chinese government and the private sector. This research, would in no small way, encourage private individuals and companies to enter into commercial transactions with sovereign States without hesitation, safe in the knowledge that the UK courts, are ready and willing to hold contracting State parties in commercial transactions, accountable.