Litigating disputes arising from transnational contracts between states and private persons

Abstract

Transnational contracts between States, or agencies or instrumentalities of such States, with private persons, mainly companies or corporations, constitute an important feature of international trade and commerce. Moreover, such contracts also contribute in no small measure to the welfare and growth of developing countries. This should not lead to the idea that such types of transnational contracts feature only in the economies of Third World countries; on the contrary, even industrialised States tend to make consistent use of such contracts in the management of their economic affairs. There are numerous types and forms of transnational agreements contracted between States and private companies. The object of this thesis is not to examine the particular traits of each type of transnational State contracts, or the peculiar clauses and stipulations which may be found therein, but rather to delineate the salient principles and notions which come to play a dominant role whenever a dispute arises from a breach of such contracts. Consequently, the thesis has been devoted to an analysis of the applicable law, jurisdiction, and above all, the notion of State Immunity, a doctrine which, to my knowledge, has not as yet been examined in any detail by local students of law or jurists. The Maltese legislator has failed to enact codified rules on the doctrine of State Immunity, and even our codes of law contain no specific rules relating to this doctrine. In addition, local jurisprudence on this matter is, to say the least, far from abundant, and hence this dissertation has necessarily taken the form of a comparative analysis in which the codifications and State practice of both Common law as well as Continental countries, together with the provisions of the European Convention on State Immunity of 1972, an instrume;t of the Council of Europe, have been studied. It is hoped that such an analysis will be of assistance both to legislators in the event that this lacuna in our law will be rectified by means of a codification of rules on State Immunity, perhaps to adjudicators in the event that such disputes arise before our courts, and especially to students interested in this legal rubric. It is also to be pointed out that I am conscious of the fact that these types of transnational contracts may contain arbitration clauses, and that therefore a study of the subject of Arbitration is necessary and important. However, I have declined from embarking on this task in the light of the fact that students of law before me have already enriched our Melitensia with more than one thesis relating to this rubric. A final note to remark that it has been thought convenient to follow the traditional Public International Law distinction between 'Immunity from Suit' and 'Immunity from Execution' separately, so that I have elected to analyse the former in Chapter 4 and the latter in Chapter 6.