- Browse all
- Content type
-
- Commentary and analysis
- Book content
- Encyclopedia entries
- Notes
-
- International instruments and materials
- Treaties
- Supporting instruments
- Institutional rules
- Resolutions
- Declarations
- Model laws
- Subject
- Author
- Geographic region
- Organization
-
My Content
(0)
Recently viewed (0)
-
My Searches (0)
Recently viewed (0)
- Save
- Cite
-
Email this content
Share Link
Copy this link, or click below to email it to a friendEmail this contentor copy the link directly:The link was not copied. Your current browser may not support copying via this button.Link copied successfully
Sign in
- Preliminary Material
- Foreword
- Preface to Paperback Third Revised and Updated Edition
- Impleading
- Public policy and Non-justiciability
- Universal civil jurisdiction for reparation for international crimes
- The employment exception to State immunity
- Immunity from enforcement and procedural measures
- Immunity of State officials
- Tensions between national constitutional requirements and superior international norms
- Preface and Acknowledgements
- Summary Contents
- Contents
- List of Abbreviations
- Table of Cases
- International Cases
- European Court of Human Rights
- European Court of Justice (ECJ)
- France-New Zealand Arbitration Tribunal
- International Centre for the Settlement of Investment Disputes (ICSID) Tribunal
- International Court of Justice (ICJ)
- International Criminal Court (ICC)
- International Criminal Tribunal for Yugoslavia (ICTY)
- International Tribunal for the Law of the Sea (ITLOS)
- Iran/US Claims Tribunal
- Netherlands/United States Arbitration
- Permanent Court of Arbitration
- Jurisdictions
- International Cases
- Table of Legislation
- Table of UNCSI Articles
- Supplementary Bibliography
- Main Text
- Introduction
- The plea as one of mixed international and municipal law
- The functions which State immunity serves
- The sources of the law of State immunity
- The recent development of the law of State immunity
- The three models on which immunity is based
- Structure of the book
- State immunity as a case study of the structure of international law
- Part I General Concepts
- Preliminary Material
- 1 The Institution of Proceedings and the Nature of the Plea of State Immunity
- 2 The Three Models of the Concept of State Immunity
- Introduction: the changing role of the independence and equality of the State
- The First Model, the absolute doctrine: the independence of the State
- One State is not subject to the jurisdiction of another State
- State responsibility the proper route for redress
- Consequent diplomatic protection, exhaustion of local remedies
- Immunity analogous to that enjoyed in the municipal law of the State
- Arguments against State immunity viewed from the position of the State
- The inability of the national court to enforce its judgments against a foreign State
- The Second Model: the restrictive doctrine
- The distinction into public and private law acts used as a legal device in other areas of regulation
- The merits and faults of the distinction into public and private law acts
- The Third Model: immunity as a procedural exclusionary plea
- From bilateralism of rights to a vertical hierarchy?
- Assessment of the Third Model
- 3 The Plea of State Immunity Distinguished from Act of State and Non-Justiciability
- Introduction
- Proceedings in national courts where a foreign State affects the court’s exercise of jurisdiction
- Special features of proceedings where the State is party
- State Practice relating to pleas of Act of State and non-justiciability: US law
- English law
- Act of a foreign State
- The plea of non-justiciability
- Modification where ‘a foothold in domestic law’
- Modification where a procedural right of access
- Pleas of Act of State, non-justiciability and State immunity compared
- Conclusion
- 4 State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
- Introduction
- The competing principle of sovereign territoriality
- The extraterritorial extension of the State’s jurisdiction
- Universal jurisdiction
- The relationship of immunity to jurisdiction
- The distinction into civil and criminal jurisdiction
- Additional jurisdictional links in civil proceedings against a State
- The exercise of criminal jurisdiction over a foreign State
- Conclusion
- Part II The Sources of the Law of State Immunity
- Preliminary Material
- 5 A Review of the Sources: Treaties and Projects for Codification
- International conventions relating solely to State immunity
- The resolutions of international bodies
- Decisions of international tribunals
- Decisions of national courts
- Treaty practice as a source
- The 1926 Brussels Convention and the 1934 Protocol
- The 1972 European Convention on State Immunity
- Projects for codification by governmental and non-governmental bodies
- 6 The Restrictive Doctrine of State Immunity: Its Recognition in State Practice
- 7 English Law: The UK State Immunity Act 1978
- Status
- General structure of the UK State Immunity Act 1978
- Definition of the foreign State
- Waiver
- The exceptions to immunity: non-immune commercial activities
- Jurisdictional link with the UK
- Commercial transaction exception, section 3
- The parallel development of the common law of State immunity
- Continuing transactions
- Section 3(1)(b): an obligation of the State which by virtue of a contract falls to be performed in the UK
- Section 3(3)(b) “a loan or other transaction for the provision of finance’
- Section 3(3)(c): ‘any other transaction or other activity…into which a State enters or in which it engages’
- Exclusion where States are parties to the dispute
- Section 3(1)(a): ‘entered into by the State’
- Employment contracts exception, section 4
- The exception for torts causing personal injuries or tangible loss, section 5
- Proceedings relating to ownership, possession, and use of property, section 6
- Proceedings relating to patents, trade marks, design, or plant breeders’ rights, section 7
- Proceedings relating to membership of corporate or unincorporate bodies, section 8
- Arbitrations, section 9
- Admiralty proceedings, section 10
- Taxation, section 11
- English law: immunity from enforcement
- Recognition and enforcement of foreign judgments given against foreign States
- A judgment given against the UK in the court of another State
- A judgment given against a State other than the UK by a court of that State
- A judgment given in the court of a foreign State against another State (other than the UK or the State to which that court belongs)
- Foreign judgments against other persons entitled to immunity such as international organisations and diplomats
- English law: procedure
- The Civil Procedure Rules
- Proof of the status of a foreign State or government
- Commencement of proceedings against a foreign State
- Service of Process
- Burden of proof
- Conclusion
- 8 US Law: The Foreign Sovereign Immunities Act 1976
- Introduction
- Immunity from adjudication
- General structure of the Foreign Sovereign Immunities Act 1976 jurisdiction
- Definition of the Foreign State
- Waiver
- Exceptions to immunity from adjudication
- The Alien Tort Act 1789 and the Torture Victim Protection Act 1991
- Introduction
- How to ascertain whether a customary international law norm meets the ‘Sosa’ standard
- Extraterritoriality, post-Kiobel
- Choice of law issues, including corporate and accessorial liability
- Exhaustion of local remedies
- Operation of immunity defences and the Act of State doctrine
- The Torture Victim Protection Act 1991
- The Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA
- Immunity from execution of the State and its property
- Amendment of the FSIA relating to execution against State property
- Concluding remarks
- 9 The 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
- Introduction
- Legislative history: the ILC’s work and its consideration in the United Nations
- Status of the Convention
- Interpretation of the Convention
- Structure of the Convention
- The general rule of immunity in the Convention
- Exclusions
- A general assessment of the Convention
- Implementation by States which have ratified the Convention
- Conclusion
- Part III The Current International Law of State Immunity
- Preliminary Material
- 10 The Definition of the Foreign State
- Introduction
- External attributes as an independent and sovereign State
- Recognition of a State or government
- Internal attributes of the State
- Head of State
- Constituent units and political subdivisions
- State agencies
- Nature and structure of State agencies
- UNCSI’s approach to definition of agencies or instrumentalities
- Definition of State agency under the absolute doctrine
- Definition of State agency under the restrictive doctrine
- Other countries
- Instrumentality or entity jointly owned by two or more States
- Agencies and instrumentalities
- Representatives of the State: Individuals
- Central banks
- 11 The Consent of the Foreign State: Waiver and the Arbitration Exception
- Introduction
- The nature of consent of a foreign State in proceedings in national courts
- Consent under the UN Convention
- Consent of the State to the exercise of jurisdiction by the court of the forum State
- Consent by choice of jurisdiction as constituting waiver
- Counterclaims: matters covered by waiver
- Waiver and the arbitration exception
- UNCSI Article17 arbitration exception: limitations
- Conclusion
- 12 The Concept of Commerciality
- Introduction
- The three requirements for an exception to immunity
- Acta jure imperii
- (a) Transactions of the State in terms of international law
- (b) Internal, administrative, and legislative acts of the State: National legislation
- (c) Issues the resolution of which has been allocated to another remedial context
- (d) The content or implementation of the foreign, defence, and security policies of the State
- (e) Intergovernmental agreements creating agencies, institutions, or funds subject to the rule of public international law
- Acta jure gestionis
- Techniques for determination of commerciality of the act
- Evaluation of the restrictive doctrine
- 13 Immunity from Adjudication: The Proceedings in which Immunity cannot be invoked, the Commercial and Other Exceptions
- Introduction
- The exception for commercial transactions
- The exception for ownership, possession and use of property
- The taking of property in violation of international law
- The exception for infringement of intellectual property rights
- Participation in companies or other collective bodies
- The exception for ships owned or operated by a State
- Conclusion
- 14 Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization
- Introduction
- (1) A foreign State’s immunity and the exception for employment contracts
- The three Models of employment contracts with a Foreign State
- The exception for employment contracts in UNCSI Article 11(2)
- Circumstances where the rule of immunity still prevails UNCSI Article 11(2)
- Employee engaged in the exercise of governmental authority
- Employee is a diplomatic agent, consular officer, etc.
- Where the subject-matter is recruitment, renewal of employment, or reinstatement
- Security interests of State as determined by the Head of State, head of government, or Minister for Foreign Affairs as grounds for dismissal
- Understanding with respect to Article 11
- Nationality of employer State unless a permanent resident of the forum State
- Agreement in writing between employer State and employee
- (2) An international organization’s immunity and the exception to immunity for employment contracts
- Allocation of responsibility in respect of employees of an international organization
- Employment contracts of the international organization and of the foreign State compared
- 15 Immunity from Adjudication: The Territorial Tort Exception
- 16 State Immunity from Enforcement: General Aspects
- Introduction
- The reasons underlying no enforcement against State property
- State practice: the general rule and modifications
- The general rule
- Modifications
- (1) State property in use or intended use for commercial purpose
- (2) The distinction into pre- and post-judgment and the difficulty of maintaining such a distinction
- (3) Modification by merger of enforcement with adjudication where there is a jurisdictional link of State property to the forum territory
- (4) Express State consent to adjudication by arbitration under institutional rules of an arbitration centre
- Conclusion in respect of Modifications 2 to 4
- Immunity from enforcement in the UN Convention
- State immunity from measures of constraint in connection with proceedings before a court
- The distinction into pre- and post-judgment
- Types of coercive measures
- Coercive measures against the State representative
- Subject-matter of coercive measures
- 17 The Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune
- The three exceptions to the General Rule of Immunity from enforcement
- Consent of the State
- Allocation of State property by the State
- Use or intended use for commercial purposes
- The five categories of State property listed as immune
- Diplomatic property
- Military property
- Central bank property
- Cultural heritage of the State
- State property forming part of an exhibition
- Conclusions with regard to Chapters 16 and 17
- Part IV Other Immunities
- Preliminary Material
- 18 Immunity of Individuals acting on behalf of the State
- Introduction
- The Head of State
- Definition
- The rationale for immunities of a Head of State
- Applicable law
- Immunities of the Head of State
- The Head of State’s position before international tribunals
- Immunities of other high-ranking officials
- Special missions
- Immunity ratione materiae of State officials
- Conclusion
- 19 International Organizations and Special Regimes
- Introduction
- International organizations
- Sources of immunities of international organizations
- Types of immunities of international organizations
- Waiver
- Provision of alternative methods of dispute settlement
- Allocating responsibility between the State and the organization
- Should UNCSI serve as a model/starting point for a future UN Convention on Immunity of International Organizations?
- Diplomats and the diplomatic mission
- Consular immunity
- Visiting armed forces
- Other issues: private military and security companies and policing and law enforcement
- Part V Conclusions
- Introduction
- Further Material
- Appendix
- United Nations Convention on Jurisdictional Immunities of States and Their Property
- Part I Introduction
- Part II General Principles
- Part III Proceedings in which State immunity cannot be invoked
- Art.10 Commercial transactions
- Art.11 Contracts of employment
- Art.12 Personal injuries and damage to property
- Art.13 Ownership, possession and use of property
- Art.14 Intellectual and industrial property
- Art.15 Participation in companies or other collective bodies
- Art.16 Ships owned or operated by a State
- Art.17 Effect of an arbitration agreement
- Part IV State immunity from measures of constraint in connection with proceedings before a court
- Part V Miscellaneous provisions
- Part VI Final clauses
- Annex to the Convention
- United Nations Convention on Jurisdictional Immunities of States and Their Property
- Select Bibliography
- Index
- Appendix
- [44.200.112.172]
- 44.200.112.172
