Environmental Engineering Reference
In-Depth Information
2.5.1 Setup of State Immunity
State immunity can be described as
) a hybrid of customary international law,
municipal law, and to a very limited extent treaty law.
(
...
'
471 In the past, the theory of
absolute immunity prevailed, which led to no possible legal actions against the
state. 472 Nevertheless, the state had the right to waive immunity. 473 The doctrine of
absolute immunity has changed over time and been replaced by the doctrine of
restricted immunity. 474 According to the new doctrine, the state waived its immu-
nity in some cases because of the new and more intense cooperation in commercial
activities (e.g. GATT and WTO). 475 It is also important how the state acts. The state
(or its entity) can act as the sovereign ( jure imperii ) or according to private law
( jure gestionis ). 476 In the case of jure gestionis , the state cannot invoke state
immunity. 477 Thus, the investor could try to conclude with the state (or its entity)
that all acts related to the projects are private acts. 478 Courts tend to define the term
“private act” narrowly. 479 Frequent cases have involved the distinction between
property severing sovereign or non-sovereign purposes. 480 It is problematic to draw
a distinctive line between commercial property and property serving public or
governmental purposes. 481 The German constitutional court (BVerfG) mentioned
in one case that there can be no execution against the property of a foreign state if
the property is devoted to sovereign purposes. 482
There are different forms of immunity, all of which are very distinct from each
other. 483 Whereas immunity from jurisdiction (limitation of the power of national
courts) is treated in a more open way, immunity of execution (restricting the
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471 Bjorklund ( 2009 ), 302 (309).
472 Pengelley ( 2009 ), 859 (859).
473 Pengelley ( 2009 ), 859 (859).
474 Recent development, in: Pengelley ( 2009 ), 859 (860); Differently, in: Nmehielle ( 2001 ),
21 (35).
475 Pengelley ( 2009 ), 859 (860).
476 Pfeiffer ( 2003 ), 141 (167); Delaume ( 1985 ), 319 (321) and (322); McIlwrath and Savage
( 2010 ), 359 para 6-091.
477
Saunders and Salomon ( 2007 ), 467 (470); Pfeiffer ( 2003 ), 141 (167); cf Delaume ( 1985 ),
319 (339-340).
478
Delaume ( 1985 ), 319 (339).
479
Saunders and Salomon ( 2007 ), 467 (471); Dolzer and Schreuer ( 2008 ), 215.
480
Bjorklund ( 2009 ), 302 (303); Reinisch ( 2006 ), 803 (808); Dolzer and Schreuer ( 2008 ), 289;
Reinisch ( 2008 ), 107 (113); European courts differ between sovereign purpose property or not, in:
Turck ( 2001 ), 327 (342).
481 Reinisch ( 2008 ), 107 (113).
482 BVerfG [1983] BVerfGE 64, 1 (1), (16) and (45).
483 Reinisch ( 2006 ), 803 (803).
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