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Enforcement of Commercial Judgements Against Foreign Sovereign Assets in International Law.

紀錄類型:	書目-電子資源 : Monograph/item
正題名/作者:	Enforcement of Commercial Judgements Against Foreign Sovereign Assets in International Law./
作者:	Rahman, Ferdous.
出版者:	Ann Arbor : ProQuest Dissertations & Theses, : 2023,
面頁冊數:	279 p.
附註:	Source: Dissertations Abstracts International, Volume: 85-06, Section: A.
Contained By:	Dissertations Abstracts International85-06A.
標題:	Retroaction. -
電子資源:	https://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=30764197
ISBN:	9798381085419

Enforcement of Commercial Judgements Against Foreign Sovereign Assets in International Law.
Rahman, Ferdous.

Enforcement of Commercial Judgements Against Foreign Sovereign Assets in International Law. - Ann Arbor : ProQuest Dissertations & Theses, 2023 - 279 p.

Source: Dissertations Abstracts International, Volume: 85-06, Section: A.

Thesis (Ph.D.)--Szeged University (Hungary), 2023.

Questions of foreign sovereign immunity play a vital role in interstate affairs as well as the State's relation with its commercial counterparts. Absolute immunity is no longer granted to a State for its commercial activities; instead following the restrictive immunity principle, the State is deemed as a private person. The United Nations Convention on Jurisdictional Immunities of State and Their Property (2004) [yet to be effective] (the UN Convention) and the European Convention on State Immunity (1972) (the ECSI) and the national legislations from dominant jurisdictions follow the same principle.Nevertheless, the immunity of sovereign assets from the measures of constraint (MoCs) is yet to be settled. The ECSI (1972) grants immunity to the foreign sovereign assets when it comes to enforcement of a judgment against the defendant State except with the State's consent thereto [article 23]. The UN Convention (2004) permits enforcement only either with consent or earmarked assets or assets used in other than governmental, non-commercial purposes [article 19]. Due to the absence of effective international law, the national legislation and the case laws have filled up the vacuum. The law on foreign sovereign immunity from MoCs develops based on the national practices also because the judgment creditor brings the enforcement litigations before the forum States where the defendant State has some assets available for MoCs. Precedents in the forum States also vary in terms of granting absolute or restrictive immunity to foreign sovereign assets for enforcement of commercial debts. For instance, China follows absolute immunity from MoCs whereas the US, the UK allow MoCs against foreign sovereign assets if used for commercial purposes. On the other hand, the Basic Law of Germany requires its courts to follow prevalent international law. However, the UN convention (2004) has not come into force, and deriving customary international law from State practices is a challenge. Therefore, the law on the immunity of foreign sovereign assets is being developed with the case laws from the national jurisdictions. Precedents from different forum States are referred to in other cases with persuasive value [even not binding]. This results in inconsistent, uncertain, and unpredictable interpretations of sovereign assets for the question of immunity from MoCs affecting the judgment creditor, the defendant State, its subjects, and the forum State as well. With a view to mitigating the adverse effects, this dissertation focused on four corner issues in enforcement of a commercial judgment against foreign sovereign asset, namely the legal framework, the substantive and procedural challenges in enforcement litigations, the interpretation of various sovereign assets for immunity in cases, and finally, application of different interpretative tools borrowed from other canons of laws.The embedded analysis of the international conventions, national legislations, and the forum State's executives' role in the enforcement litigations against another State show the scattered status of the laws on the immunity of sovereign assets from MoCs. Such as, where the Brussels Convention (1926) allows enforcement against Stateowned ships in case of their commercial uses, the Paris Convention (1919) and the Chicago Convention (1944) state that the State-owned aircrafts are not immune unless they are used in public services, the ECSI (1972) grants MoCs only with State's consent. Besides, where the UN Convention and several national legislations declare the assets with commercial use/purpose as non-immune, the interpretation of the same is left at the discretion of the deciding court. In some cases, concerned executive branches of forum States send amicusbriefs to the courts suspending or stopping the MoCs against the foreign sovereign assets despite the respective national legislations allowing MoCs. These justify the further study on the substantive and procedural challenges for a comprehensive view of the enforcement litigations against foreign sovereign assets.In enforcement litigations, two substantive questions regarding the targeted asset are ownership and attribution of the asset. The challenge arises when the defendant State is not the owner of the asset but a mere holder; or the State-owned asset is held by a separate legal entity pursuant to some contractual arrangement e.g., concession contract, agency, bailment contract, lease, or assignment contract, etc. Assets of Stateowned enterprises (SOEs) are another example of a similar challenge. For attribution, different courts follow different tests either suggested by the respective legislation or in absence of any suggestion from the legislation, at the discretion of the deciding court e.g., nature test, commercial activity test, purpose test, etc. Challenges from procedural matters are the undermined burden of proof, the standard of evidence, and the pre-judgment attachment. Such as, should the court accept the certificate from the head of a diplomatic mission as to the purpose of the targeted asset as conclusive or should it investigate further? Should such investigation be construed as an interference to the sovereign functions of the defendant State? Moreover, the dilemma among the courts in granting pre-judgment attachment entices the defendant State to remove the asset from the territory of the forum State which leaves the judgment creditor with a mere paper judgment of enforcement.

ISBN: 9798381085419Subjects--Topical Terms:

3774469
Retroaction.

Enforcement of Commercial Judgements Against Foreign Sovereign Assets in International Law.
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The UN Convention (2004) permits enforcement only either with consent or earmarked assets or assets used in other than governmental, non-commercial purposes [article 19]. Due to the absence of effective international law, the national legislation and the case laws have filled up the vacuum. The law on foreign sovereign immunity from MoCs develops based on the national practices also because the judgment creditor brings the enforcement litigations before the forum States where the defendant State has some assets available for MoCs. Precedents in the forum States also vary in terms of granting absolute or restrictive immunity to foreign sovereign assets for enforcement of commercial debts. For instance, China follows absolute immunity from MoCs whereas the US, the UK allow MoCs against foreign sovereign assets if used for commercial purposes. On the other hand, the Basic Law of Germany requires its courts to follow prevalent international law. However, the UN convention (2004) has not come into force, and deriving customary international law from State practices is a challenge. Therefore, the law on the immunity of foreign sovereign assets is being developed with the case laws from the national jurisdictions. Precedents from different forum States are referred to in other cases with persuasive value [even not binding]. This results in inconsistent, uncertain, and unpredictable interpretations of sovereign assets for the question of immunity from MoCs affecting the judgment creditor, the defendant State, its subjects, and the forum State as well. With a view to mitigating the adverse effects, this dissertation focused on four corner issues in enforcement of a commercial judgment against foreign sovereign asset, namely the legal framework, the substantive and procedural challenges in enforcement litigations, the interpretation of various sovereign assets for immunity in cases, and finally, application of different interpretative tools borrowed from other canons of laws.The embedded analysis of the international conventions, national legislations, and the forum State's executives' role in the enforcement litigations against another State show the scattered status of the laws on the immunity of sovereign assets from MoCs. Such as, where the Brussels Convention (1926) allows enforcement against Stateowned ships in case of their commercial uses, the Paris Convention (1919) and the Chicago Convention (1944) state that the State-owned aircrafts are not immune unless they are used in public services, the ECSI (1972) grants MoCs only with State's consent. Besides, where the UN Convention and several national legislations declare the assets with commercial use/purpose as non-immune, the interpretation of the same is left at the discretion of the deciding court. In some cases, concerned executive branches of forum States send amicusbriefs to the courts suspending or stopping the MoCs against the foreign sovereign assets despite the respective national legislations allowing MoCs. These justify the further study on the substantive and procedural challenges for a comprehensive view of the enforcement litigations against foreign sovereign assets.In enforcement litigations, two substantive questions regarding the targeted asset are ownership and attribution of the asset. The challenge arises when the defendant State is not the owner of the asset but a mere holder; or the State-owned asset is held by a separate legal entity pursuant to some contractual arrangement e.g., concession contract, agency, bailment contract, lease, or assignment contract, etc. Assets of Stateowned enterprises (SOEs) are another example of a similar challenge. For attribution, different courts follow different tests either suggested by the respective legislation or in absence of any suggestion from the legislation, at the discretion of the deciding court e.g., nature test, commercial activity test, purpose test, etc. Challenges from procedural matters are the undermined burden of proof, the standard of evidence, and the pre-judgment attachment. Such as, should the court accept the certificate from the head of a diplomatic mission as to the purpose of the targeted asset as conclusive or should it investigate further? Should such investigation be construed as an interference to the sovereign functions of the defendant State? Moreover, the dilemma among the courts in granting pre-judgment attachment entices the defendant State to remove the asset from the territory of the forum State which leaves the judgment creditor with a mere paper judgment of enforcement.
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