The book provides a sophisticated analysis of state immunity from an enforcement perspective. It covers all relevant legal techniques of enforcing an arbitral award against a sovereign state. Besides tackling the plea of state immunity through the courts, this book also covers notable non-judicial remedial measures which may aid the aggrieved investors in satisfying their claims against state parties to a dispute. These measures may be used either to enhance the effectiveness of judicial remedies or as stand-alone remedies when legal measures seem (or prove to be) ineffective. After having identified problems arising from a lack of universal agreement on state immunity and the diversity and, more dishearteningly, the inadequacy of forms of enforcement available to an aggrieved claimant, this book proposes a new approach to solve state immunity issues. The international community must work towards the setting up of a central enforcement agency, a functional model of enforcement.
Author(s): Zixin Meng
Publisher: Springer
Year: 2022
Language: English
Pages: 217
City: Singapore
Contents
Abbreviations
Part I A General Statement of Principles
1 Introduction
2 An Appraisal of State Immunity
The Basis for Immunity
Dynamic Developments
The New Economic Demands After the Second World War
Changes in the Domestic Politico-Economic Systems
The Emergence of the Doctrine of Restrictive Immunity
3 State Immunity and Its Enforcement
No Convention Rules on Enforcement
Status of State Immunity in Enforcement Proceedings
Key Issues
The Presumption of Immunity
Immunity and Municipal Law
Part II Investment Practice of State Immunity
4 Jurisdiction Versus Execution
The Judicial Power of the Court
The Distinction Between the Two Immunities
The US FSIA
The UK SIA
The Practice of Other States
Exceptions
Issues Arising from Recent Developments
Waiver of Immunity from Execution
Broader Immunity with Respect to Execution
5 Conditions for Enforcement
Waiver
Commercial Exception
The US FSIA in Court
The UK SIA in Court
The Practice of Other States
Unresolved Issues
Connection Requirements
Subject-Matter Connection
The Entity Connection
Territorial Connection
Separate Entity Ownership
Executive Oversight or Authorization
6 Conservatory Measures
Immunity as a Preliminary Issue
The Conditions for Conservatory Measures
Under the Same Conditions as Execution
Under More Liberal Conditions
Under More Restrictive Conditions
7 State Property Immune from Execution
Diplomatic Property
Diplomatic Premises
Bank Accounts Held by Diplomatic Missions in the Forum State
Cultural Centers and Information Offices
Central Bank Funds
Military Property
Part III Remedies of State Immunity
8 Existing Remedies of State Immunity
Existing Remedies
Waiver of Immunity from Execution
Diplomatic Protection
Comfort Letter
Earmarked Property
Post-award Settlement
Insurance
Assignment of Award to a Third Party
Human Rights Considerations
Inducement
Unresolved Issues
Re-politicization
Obsolete State-Centrism
9 Addressing the Dilemma of State Immunity: An Alternative Approach
Community Authority and Effective Power
A Centralized Enforcer
The Target, the Creditor State or the Third-Party
States Favor Peaceful Resolution of Disputes
Public Policies
Strategies
Summary
Appendix 1
Appendix 2
10 Conclusion
Bibliography
