Environmental Engineering Reference
In-Depth Information
enforcement power of national courts) continues to be very strict.
484
There have
been several attempts to deal with the issue of immunity. In 1972 the European
Convention on State Immunity was signed in Basle. As only eight states ratified it
(e.g. Germany, Switzerland and Austria), it never lived up to its expectations. Even
the ILC dealt with the question of state immunity in the 1982 Montreal Draft
Articles for a Convention on State Immunity.
485
Up until today the convention
did not enter into force. With regard to monetary claims, Art. 18(2) mentioned that
there is a possibility of waiver, but this does not include the execution immunity.
486
In 2004, the UN General Assembly issued Resolution A/59/38, called the United
Nations Convention on Jurisdictional Immunities of States and Their Property. It is
very similar to the ILC Draft. Resolution A/59/38 includes in Art. 18 and 19 pro-
visions concerning the immunity related to pre- and post-judgment measures.
However, the issue of execution immunity is quite problematic, as it is treated in
very strict way. Nevertheless, Art. 18 and 19 are exempt from the immunity in cases
of state waivers as paragraphs a in both articles illustrate. Art. 5 of Resolution A/59/
38 mentions that each country has immunity, with regard to itself and its property,
from the jurisdiction of another state. As Art. 7 and 19 of Resolution A/59/38
illustrate, the Convention also differentiates between jurisdictional and execution
immunity. Resolution A/59/38 admits execution against property may be used
'
, as long as the property has a
connection with the entity against which the proceeding is directed (Art. 19(c) and
21 of Resolution A/59/38). However, until today, Resolution A/59/38 has not
entered into force due to it lacking the required amount of signatures and it is not
legally binding. Resolution A/59/38 can only serve as an interpretation instrument.
Immunity also depends on the signed international conventions and autonomous
rules of each country.
487
Success of arbitration and its awards depends on the
enforceability against the losing party.
488
An award without the backing of the
national court orders does not have the power to impose sanctions on the losing
party.
489
(
...
) governmental non-commercial purposes (
...
)
'
In most cases, the losing party will automatically perform the award.
490
484
Mixed results of claims, in: Bjorklund (
2009
), 302 (309); Reinisch (
2006
), 803 (803-804); cf
Nmehielle (
2001
), 21 (31); Bjorklund (
2009
), 302 (303-304); cf with different background, in:
Pengelley (
2009
), 859 (861) and (866); cf Reinisch (
2008
), 107 (112).
485
The 1994 Buenos Aires Revised Draft Articles for a Convention on State Immunity did not
change the articles relating enforcement immunity.
486
Heß (
1993
), 269 (277).
487
Lorcher (
2001
), 275 (277); The implementation of international convention is also highly
important, in: Sattar (
2010
), 51 (56).
488
Nmehielle (
2001
), 21 (29).
489
Sattar (
2010
), 51 (55).
490
Badmus-Busari (
2013
), 47-48; Saunders and Salomon (
2007
), 467 (467); Partasides and
Fullelove (
2010
), 1 (11); Concerning ICSID awards, in: Moses (
2008
), 227; Euro-Mediterranean
Association for Cooperation and Development e.V. (
2010
), 1; Enforcement is at 98 % of all
awards, in: Moses (
2008
), 208; Harten and Loughlin (
2006
), 121 (134); Sattar (
2010
), 51 (54-55);
Different opinion, in: McIlwrath and Savage (
2010
), 343 para 6-042.
