Sovereign immunity : foreign states in civil proceedings

Abstract

The question of State immunity is the question of jurisdiction: when can an individual sue a foreign State? For decades now, the presumption has been that a State shall not enjoy immunity only with regards to its commercial activities, as opposed to acts jure imperii, however this view is dangerously narrow. While it is true that the first major development in the theory of Sovereign immunity was the shift from the absolute to the restrictive doctrine, it is also true that the evolution is still underway. Sovereign immunity has entered the second phase in its history, purely due to the fact that the activities of the State are constantly increasing. This evolution is being reflected in several national and international State immunity laws, as well as in cases heard before national courts, as may be seen in the recent dramatisation of the Altmann decision: ‘The Woman in Gold’. However, several States have failed to either enact their own legislation or ratify the international instruments. In these States there is no longer a clear-cut equation for when an individual can sue a foreign State or not. In this work, the author shall focus on (i) Contracts of Employment, (ii) Non Commercial Torts, (iii) Expropriation, and (iv) Waivers of Immunity; analysing how they’re treated in State immunity legislation, with particular importance given to the UK State Immunity Act and US Foreign Sovereign Immunities Act. In the concluding chapter the author shall discuss the position of State immunity under Maltese law, and shall cite the Maltese judgment AWT Handels Gesellschaft mbH v Il-bastiment M/V Dmitriy Polujan et as clear affirmation that in the absence of a Maltese State immunity act, UK practice should apply.