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Part III The Current International Law of State Immunity, 12 The Concept of Commerciality

Hazel Fox, Philippa Webb

From: The Law of State Immunity (Revised and Updated 3rd Edition)

Hazel Fox, QC, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 January 2022

Subject(s):
Acta jure imperii — Acta jure gestionis — Immunity from jurisdiction, states — Non-justiciability — Sovereignty — Customary international law — Opinio juris — Territoriality

This chapter provides a brief overview of the categories of acts in the exercise of sovereign authority, a discussion of the basis of this distinction and the criteria to support it, and a general evaluation of the restrictive doctrine. A core issue for the modern justification of the restriction of absolute State immunity is the private law or commercial nature of the activity which forms the subject of a claim before a national court and supplies the distinction between sovereign governmental acts and private acts on which the rules are based. The commercial or private law exception is driven by an increasing concern for private rights and public morality, coupled with the increasing entry of governments into what had previously been regarded as private pursuits. That concern is widespread, but establishing a legal formulation for the exception has proved difficult.

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