Contracts for the supply of goods or services, financing transactions and associated guarantees or indemnities will be treated as commercial transactions. Employment contracts between states and individuals will not. Beyond these examples, the determination of the nature of a transaction will depend on the facts and the ability of the party claiming that the exception applies to demonstrate that the state acted like a private person and not in the exercise of sovereign authority. This is not an easy test to apply in practice.
Also note that the parties can contract out of this exception. Caution should therefore be exercised in circumstances where a state is pressing for the inclusion of a contractual statement preserving its right to claim immunity to the fullest extent possible. The third exception applies to obligations of the state performed in the UK.
In such circumstances the state in question cannot claim immunity. Unlike the commercial transaction exception, this exception applies to contractual obligations in any kind of contract, regardless of whether the state entered into the contract in exercise of its state authority.
The exception does not apply if the contract was not a commercial transaction, is governed by the state's administrative law, and was made in that state's territory. This exception covers agreements in writing to submit a dispute to arbitration, including arbitration outside the UK, i. The purpose of the exception is to enable English court proceedings to be brought in support of any arbitration.
However, the exception is subject to any contrary agreement and so the cautionary point made above applies. A specific exception is not required for arbitration generally as issues of state immunity do not arise; by agreeing to refer disputes to arbitration, the state is submitting itself to the jurisdiction of the tribunal appointed.
It should be noted that, just because a state is not entitled to claim immunity from suit, it does not automatically mean that the English courts will have jurisdiction over that state. The state is in the same position as any other defendant and the claimant will still need to be able to show that the English courts have jurisdiction.
In addition, the courts will not have jurisdiction to resolve disputes concerning certain types of sovereign act which covers disputes involving, for example, sensitive issues of diplomacy between states, or uncertain or controversial issues of international law. A state can give written consent to the enforcement of decisions or awards. The state's consent can be limited to particular circumstances or apply generally, but will not be constituted by a submission to the jurisdiction of the English courts.
As a general rule, any waiver should mirror the wording of the section 13 2 immunity and should cover pre-judgment as well as post-judgment execution. The enforcement of judgments or arbitral awards may be enforced against property that is in use or intended for use for commercial purposes.
This is similar to the commercial transaction exception to immunity from adjudication, but is more narrowly applied in the context of enforcement.
In order for the exception to apply, the party seeking enforcement must establish that the relevant assets are currently "in use or intended for use" for a commercial transaction. It is insufficient for the assets merely to be connected with a commercial transaction or for them to originate from a commercial transaction.
A state can also raise a presumption that the assets are not used for commercial purposes by issuing a certificate to that effect. Also important is the fact that state central banks and other monetary authorities benefit from a more favourable immunity regime. The SIA makes it clear that these entities enjoy immunity from enforcement, even against assets that are held for commercial purposes.
The easiest and most efficient way of dealing with state immunity is to seek an express waiver of that immunity. The following key considerations must be kept in mind when drafting waiver of immunity clauses:. Several sample clauses can be found in case law or in model clauses proposed by international organisations.
Any Party that now or hereafter has a right to claim sovereign immunity for itself or any of its assets hereby waives any such immunity from either jurisdiction or enforcement to the fullest extent permitted by the laws of any applicable jurisdiction. This waiver includes immunity from i any expert determination, mediation, or arbitration proceeding commenced pursuant to this Agreement; ii any judicial, administrative, or other proceedings to aid the expert determination, mediation, or arbitration commenced pursuant to this Agreement; and iii any effort to confirm, enforce, or execute any decision, settlement, award, judgment, service of process, execution order, or attachment including pre-judgment attachment that results from an expert determination, mediation, arbitration, or any judicial or administrative proceedings commenced pursuant to this Agreement.
Each Party acknowledges that its rights and obligations subject to this Agreement are of a commercial and not a governmental nature. When dealing with a state or a state-owned entity, we recommend that you carefully consider the following:. We bring together lawyers of the highest calibre with the technical knowledge, industry experience and regional know-how to provide the incisive advice our clients need.
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Legal Updates. The PDF server is offline. Please try after sometime. What is state immunity? The absolute doctrine Initially the first and only approach, the absolute doctrine still applies in some jurisdictions, notably China and Hong Kong. The restrictive doctrine The increasing involvement of states in world trade activities led to the development of a more restrictive approach to state immunity, where a distinction is drawn between acts of a sovereign nature and acts of a commercial nature.
Which law will apply? Why does state immunity matter? Who can benefit from state immunity? What are the exceptions to state immunity? Exceptions to immunity from adjudication There are four main exceptions to immunity from adjudication under the SIA.
Submission to the jurisdiction of the English courts A state will not be immune from adjudication where it has either expressly agreed that the English courts have jurisdiction i. Commercial transaction The second exception gives effect to the restrictive doctrine of state immunity. Proceedings related to a contractual obligation to be performed wholly or partly in the UK The third exception applies to obligations of the state performed in the UK. Agreement to submit to arbitration This exception covers agreements in writing to submit a dispute to arbitration, including arbitration outside the UK, i.
Commercial purpose The enforcement of judgments or arbitral awards may be enforced against property that is in use or intended for use for commercial purposes.
Waiver of immunity clauses The easiest and most efficient way of dealing with state immunity is to seek an express waiver of that immunity. The following key considerations must be kept in mind when drafting waiver of immunity clauses: The waiver clause should be included in all transaction documents that involve state parties. The clause should be agreed by all states or state entities likely to be part of the transaction or which hold assets relevant to the transaction.
The clause has to be an express and clear waiver of both immunity from suit and immunity from enforcement: merely specifying the applicable law or waiving the state's immunity without express agreement to submit to the relevant courts is unlikely to be sufficient.
The clause should extend to all of the state's assets or any separate entity's assets. Ideally, the waiver should be sufficiently general to cover all assets, even those which might be transferred from the state involved to other state entities. If not possible, the clause should at least specify the type of assets to which the waiver will apply. The clause has to have been a greed by a person who has the required authority of the state: check that they have authority to waive immunity.
The waiver provisions should include express confirmation that the entity is not acting in a sovereign capacity: this will avoid issues when dealing with separate entities in particular. Check the enforceability of the waiver clause in all jurisdictions where you are likely to seek the enforcement of any judgment or award.
Sample clause: the Model Form Joint Operating Agreement of the Association of International Petroleum Negotiator Several sample clauses can be found in case law or in model clauses proposed by international organisations. Issues to consider when contracting with a state When dealing with a state or a state-owned entity, we recommend that you carefully consider the following: To what extent can the state waive immunity? Check what is required for the waiver to be effective under the law of the state waiving immunity.
If arbitration is the chosen forum, where should the place of arbitration be? Ensure that the place of arbitration is in a country which is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and applies a restrictive approach to sovereign immunity.
In addition, make sure that the agreement includes a full waiver clause: you need to be able to bring any enforcement proceedings before the courts to realise the fruits of any award. Can you structure the transaction through a separate entity? Where possible, structure the transaction so that it operates through a separate entity which will not benefit from state immunity, rather than through the state itself.
Ideally, this separate entity should be a private incorporated body, with a separate legal personality and not be subject to the direct control of the state. Its banking facilities should be handled by a private bank, independent from the state. This is unsurprising, as his presence would not be necessary to ensure the efficient performance of the functions of diplomatic missions. Neither the letter nor the spirit behind diplomatic immunity supports lending President Al Bashir such immunity.
One can clearly imagine what the actual text of Article 98 1 might mean in practice without an overbroad interpretation.
That meaning is readily explainable. For example, one might suggest that the ICC may not order that the bank accounts and other property of states and diplomats would be subject to seizure, if that violated the specific obligations under international law in question.
Any attempt by the Court to request the arrest or surrender of accredited diplomatic agents of a third state widely interpreted as a non-State Party would be subject to a legitimate objection under Article 98 1.
They must persuasively explain how, under Article 98 1 , President Al Bashir is either a diplomat or a state, or how, under Article 98 2 , he is covered under obligations under specific international agreements. One can understand how confusion may arise given the arguably unsettled state of the law, and the muddled roots of head of state immunity as customary international law. Head of state immunity may be ultimately rooted in—while still distinguishable from—state immunity or diplomatic immunity, depending on the national tradition.
It has no applicability to the customary law norms regarding head of state immunity. Neither Chad nor Malawi has a specific agreement requiring the consent of Sudan before honouring their obligations to the Court.
The split between the AU and the ICC, and the great confusion surrounding the proper interpretation of Article 98 makes a clear analysis of immunity under Article 98 an important and pressing matter. This issue will certainly return. Just a quick reply: Leaving aside the question who should bear the burden of proof regarding the interpretation of article 98 1 of the ICC Statute, the interpretation offered by Jens Iverson is not persuasive. If the proof would have to be that president Al Bashir is a State, then quite obviously this will not be possible.
And this would be equally impossible with respect to any other person —natural, legal, corporate, or otherwise—, unless that person is a State. In other words, only the State as a legal person would be covered by the reference to State immunity in art. Yet the formulation that the ICC Statute uses in art. But if that were the case, the more logical formulation should have been 'the diplomatic immunity of a person or State immunity of property of a third State'.
Though this argument is perhaps not ironclad, one should note that the ICC only possesses criminal jurisdiction over natural persons art. What is less clear then is why art. It seems to me that the burden of proof with respect to the answer to that question lies with Jens Iverson, but one that he —at least in my view— fails to meet. Also, 27 2 does not answer the question whether some immunity may attach under international law, but merely states "which may attach" -- thus, may or may not attach; and whether or not they otherwise "amy," they, expressly, "shall not bar the Court".
Furthermore, with respect to alleged diplomat immunity for international crimes, recall the famous statement of the IMT at Nuremberg regarding the law of immunity for any person in any capacity if the state moves outside its competence under international law -- an ultra vires rationale that should help one to recognize that no person can have authority under international law to violate international criminal law and that any such conduct would be ultra vires and not protectable. I recall that some diplomats were prosecuted for war crimes, e.
And why should the Vienna Convention be read as providing anything more that diplomatic immunity for certain diplomats with respect to ordinary offenses under domestic law of the host state and, thus, not international crimes? Unfortunately, we are experiencing efforts by some state elites to protect themselves from international crimnal responsibility, e. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.
Prompting discussion on the issue was one reason why I wrote the post. I hope there is more. Starting with where I think we agree — Article 98 could perhaps have been more clearly written. Bush administration over the applicability of Article 98 to Status of Forces Agreements. Of course, sometimes ambiguity in legal language is the result of design rather than error. As far as I can tell, we also agree that head of state immunity is not diplomatic immunity. What remains is the question of conflating state immunity and head of state immunity.
To me, this logic cuts both ways. If it was obvious that Article 25 1 prevented jurisdiction over the legal person of a State, and that a request surrender of a state is a bit odd, then it seems wholly unnecessary to bother with a baroque construction such as:. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the diplomatic immunity of a person or property of a third State, or a request for assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State immunity of property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
State immunity covers more than criminal or civil liability for the legal person of the state. Perhaps this is an instance of intended ambiguity. Fundamentally, the problem of differentiating or conflating state immunity and head of state immunity remains unchanged.
As recently put by the ICJ, no slouch when upholding the immunities of state officials:. Pinochet concerned the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages. The distinction between the immunity of the official in the former type of case and that of the State in the latter case was emphasized by several of the judges in Pinochet Lord Hutton at pp.
There is no persuasive reason to believe the drafters of the Rome Statute lacked that capacity. Thanks for your comments. I referenced Article 27 2 rather than 27 1 because I read 27 1 as covering jurisdiction and sentencing, while 27 2 covers immunities and procedural bars to admissibility. Article 27 2 seems more on point to me with respect to Article With respect to your other points- they track to some degree what the Pre-trial Chamber has said, and others have said.
I think the language of the IMT is quite powerful.
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