Legal regulation of restrictions on the jurisdictional immunity of a foreign state / Правовое регулирование ограничения юрисдикционного иммунитета иностранного государства

Виноградова Полина Анатольевна кандидат юридических наук независимый исследователь 129000, Россия, г. Москва, ул. Новый Арбат, 19 Vinogradova Polina Anatolievna PhD in Law Alternate Senior Research Officer at the Institute of Legislation and Comparative Law Under the Government of the Russian Federation  129000, Russia, g. Moscow, ul. Novyi Arbat, 19 polyvinogradova@gmail.com Другие публикации этого автора

Abstract. The subject of this paper is social relations relevant to consideration by Russian courts of disputes related to a foreign state’s property. The paper deals with the issues of the jurisdictional immunity of a foreign state and its property. The purpose of the paper is examination of the innovations in the Russian legislation on jurisdictional immunity. The objectives of the paper include analysis of jurisdictional immunity concepts, provisions of international treaties in this field and practice of various states for jurisdictional immunity restriction. The methodological basis for this research consisted of the systemic, comparative approaches, methods of analysis.

Academic novelty of the paper stems from the coming changes in the legal regulation of these issues in Russia. In 2015, the Government of Russia submitted to the Russian parliament draft Federal Law On the Jurisdictional Immunity of a Foreign State and Foreign State’s Property in the Russian Federation.

The results of the study make it possible to generalize the requirements of the Russian legislation in the field of restriction on the jurisdictional immunity of a foreign state and the legal grounds for consideration of disputes in this field by Russian courts.

Key words: jurisdictional immunity, foreign state, immunity from legal process, immunity from interim measures, immunity from enforcement, sovereign powers authority, Russian legal system, the reciprocity principle, functional immunity, waiver of immunity.

Consideration of the foreign state immunity concept is caused by its special significance, evidenced by a reasonable conclusion that «the principle of foreign state immunity is a principle of a modern international public law, and its detailed elaboration and specific contents are unfolded by the rules of international private law» ^{[3, pp. 8, 20]}.

Special significance of this principle for public law results from the fact that existence of immunity of a state is based on sovereignty of the state. At the same time, implementation of absolute immunity violates in fact the principle of equality of the parties, since an individual is deprived of the opportunity to bring a claim against the state with respect to civil law transactions ^{[5, pp. 9-10]}.

Multilateral conventions governing the issues of jurisdictional immunity restriction include the UN Convention on Jurisdictional Immunities of States and Their Property (the UN Convention) and the European Convention on State Immunities (the Basel Convention). The Russian Federation has signed bit has not ratified the UN Convention. The Convention becomes effective on the thirtieth day after the date of deposition by the thirtieth state of the document on adoption or approval thereof or accession thereto. As only 18 states are members of the UN Convention as of July 09, 2015, it is reasonable to suppose that the UN Convention is still a long way from entry into force. The Basel Convention is not signed by Russia, and 9 states are members thereof.

Widespread acceptance has been gained by states’ shifting from the absolute immunity concept to limited (functional) immunity «formalized by way of determining exceptions from the absolute immunity principle» ^{[5, p. 14]}. A special legislation on foreign states’ immunity is in place in Australia, Argentine, Great Britain, Canada, the USA, Singapore, etc. The widest competence is granted to the judicial authorities of the USA, whose jurisdiction is interpreted broadly and may be extended to the transactions made in US dollars ^{[1, p. 313]}.

In Russia, similar legitimate grounds are being formed for implementation of the foreign state’s functional jurisdictional immunity theory.

According to the Russian legislation, a foreign state has immunity from legal process with respect to a claim brought against it to the Russian court, bringing it to a case as a third party, attachment of property and taking by the court of interim measures to secure the claim and property interests. Execution may be only levied on such property on consent of competent authorities of the relevant state unless otherwise provided for by an international treaty of the Russian Federation or by a federal law. The institution of a claim against a foreign state in a Russian court, drawing of a foreign state to participation in a case in the capacity of the defendant or of the third person putting the property of a foreign state situated on the territory of the Russia under arrest and the adoption towards this property of other measures aimed at providing for the claim, as well as turning an exaction onto this property by way of execution of the court decisions shall be admissible only with the consent of the competent bodies of the corresponding state, unless otherwise envisaged in the international treaty or in federal law (Article 401 of the Civil Procedure Code of the Russian Federation). A foreign state as a holder of power enjoys jurisdictional immunity regarding claims filed against it with commercial courts in the Russia, its drawing to participation in the case in the capacity of a third person, arrest of property belonging to the foreign state and located on the territory of the Russia, measures taken against it to secure the claim and property interests. Recovery of this property in the course of enforcement of a commercial court’s judicial act is only admissible with the consent of the competent bodies of the corresponding state, unless otherwise stipulated in an international treaty or in federal law (Article 251 of the Commercial Procedure Code of the Russian Federation).

In 2015, the Government of Russia submitted to the Russian parliament draft Federal Law On the Jurisdictional Immunity of a Foreign State and Foreign State’s Property in the Russian Federation (the Federal Law). In fact, the said Federal Law extends the competence of the RF judicial authorities. That is reasonable due to widespread acceptance in the Russian law application practice of principles that allow ruling out collision of legal rules by way of comparison of constitutionally significant values and balancing private and public interests ^{[6, p. 23]}. In this context, the objective of the judicial examination is to settle the collision of the sovereignty principle and the principle of equality of the parties.

Among the recent measures taken to establish the Russian jurisdiction are amendments to the Law on the RF Constitutional Court, determining the possibility of consideration of the issue of constitutionality of a legal act contrary to a judgment delivered by an inter-state body for protection of human rights and liberties. On July 14, 2015, the RF Constitutional Court declared the resolution on a so-called inquiry on applicability of judgments of the European Court of Human Rights (Judgment of 14th July, 2015 No. 21-П/2015). The said measures form a legal basis for consolidation of the Russian jurisdiction.

The Federal Law establishes the legal framework for the jurisdictional immunity of a foreign state and its property in the RF territory in conformity with the UN Convention on Jurisdictional Immunities of States and Their Property.

Due to extension of foreign economic operations and attraction of foreign investments, the Russian Federation has entered into dozens of international treaties on mutual protection of investments, determining that disputes related to investments shall be considered by international commercial arbitration. In the applicable legislation of some foreign countries, that shall mean waiver of jurisdictional immunity. The Russia’s practice of foreign economic activity and international treaties shows that the trend has emerged of recognizing by the Russian Federation of foreign courts’ jurisdiction, which means waiver of immunity. The number of claims brought against Russia and its bodies in foreign courts is steadily growing, without requesting from the Russian Federation its consent to taking part in a case.

The reciprocity principle with respect to jurisdictional immunity means that Russian judicial authorities may proceed from the scope of jurisdictional immunity similar to that enjoyed by the Russian Federation in the relevant foreign state. Based on this principle, the jurisdictional immunity of a foreign state and its property may be restricted if it is established that restrictions exist in the foreign state on jurisdictional immunity enjoyed by Russia. The Russian Ministry of Foreign Affairs is empowered to provide its opinions on the issues of jurisdictional immunities enjoyed by the Russian Federation in a foreign state.

The Federal Law establishes the limits of jurisdictional immunity of foreign states and their property, determines the cases where a foreign state and its property do not enjoy jurisdictional immunity and provides for the possibility of a foreign state’s waiver of jurisdictional immunity. In particular, the exceptions from sovereign immunity and the grounds for restricting immunity from legal process are the following:

1) a foreign state’s consent to jurisdiction of the Russian court (Article 6 of the Federal Law);

2) waiver of immunity from legal process, namely, the following: bringing a claim to the RF court, intervention into proceedings or other actions on the merits of a case, and a written consent to consideration of disputes to which it is a party by an arbitration court (court of referees);

3) if a dispute:

- relates to conducting by a foreign state of entrepreneurial activity in the territory of the Russia or in the territory of any other state if the consequences of such activity relate to the territory of Russia (Article 8 of the Federal Law);

- has arisen out of an employment contract (Article 9 of the Federal Law);

- has arisen between a foreign state and an organization having other members in addition to states and (or) international inter-governmental organizations and conducting its core activity in the territory of s, in the cases where a foreign state is a founder or a member of such organization (Article 10 of the Federal Law);

- relates to a foreign state’s rights to property located in the territory of Russia or to its obligations with respect to such property (Article 11 of the Federal Law);

- is a dispute for compensation by a foreign state of harm caused to life, health, property, honor and dignity, or business reputation of an individual, or to property or business reputation of a legal entity, if the claim has arisen out of causing such harm by any action (omission) or in connection with any other circumstance having taken place in the territory of Russia (Article 12 of the Federal Law);

- relates to establishment and exercising of a foreign state’s rights to results of intellectual activity and the means of individualization of legal entities, products, works, services and enterprises equated thereto, or to alleged infringement upon the said rights by a foreign state (Article 13 of the Federal Law);

- relates to operation of a vessel owned or operated by a foreign state if at the time when the fact occurred that has become the ground for the claim the vessel was used by the foreign state for business purposes, except for war ships and other vessels and goods owned by a foreign state and intended for use thereby solely at exercising its sovereign powers and authority (Article 14 of the Federal Law).

Immunity to legal process may not be restricted with respect to exercising by a foreign state of its sovereign powers and authority (Article 8 of the Federal Law). The draft law considers as actions that should not be qualified as waiver of jurisdictional immunity involvement of a state in legal proceedings or other procedural actions with the purpose to declare jurisdictional immunity or to provide the proof of existence of the right with respect to the property being the subject of the legal proceedings (Article 7 of the Federal Law).

A foreign state’s waiver of immunity from legal process with respect to a specific dispute is not considered as its waiver of immunity with respect to interim measures or with respect to court judgment enforcement. The following is determined as the grounds for restricting such immunities (Articles 15-16 of the Federal Law):

a foreign state has expressly stated its consent to the relevant measures;

a foreign state has reserved or otherwise marked its property in the case of satisfying the claim being the subject of the legal proceedings;

it is established that a foreign state’s property located in the territory of Russia is ised and (or) is intended for use by such state for the purposes not related with exercising by the state of its sovereign powers and authority. The list of such property is determined by Article 17 of the Federal Law and includes, in particular, the property of the diplomatic missions of a foreign state or its consular establishments, military property, cultural values, etc.

The Federal Law determines the regulatory definition of the following concepts: «jurisdictional immunity», «foreign state», «immunity from legal process», «immunity from interim measures», «immunity from enforcement», «sovereign powers and authority», etc. In particular, it is proposed that immunity from legal process should be understood as exception of a foreign state from the jurisdiction of the RF judicial authorities by way of establishing the duty of the Russian court to refrain from bringing a foreign state into legal proceedings.

Further measures for consolidation of the Russian jurisdiction include making amendments to the legislation (the Civil Procedure Code of the Russian Federation, the Commercial Procedure Code of the Russian Federation Federal Law «On enforcement proceedings» No 229-FZ dated October 2, 2007) with the purpose to settle the issues of reciprocity and carrying out proceedings with involvement of a foreign state.

Further legal support is also necessary to the concept of the right to immunity of a non-recognized state, recognition of which «only facilitates the exercise of the right to sovereign immunity rather than forms such right» ^{[5, p.19]}.