| State Immunity is one of the most important areas of international law. The greatdebate is whether one state should be subject to the jurisdiction of another state undersome exceptions. Since Second World War, several states, such as USA, UK, German,Australia and Canada, have taken a view that one state must be subject to thejurisdiction of another state under some exceptions, and the commercial activityexception is the most significant one. It is that the adaptation between the theory andthe basic situation of a state decides one state to choose that theory. The theory ofState Immunity should be regarded in the light of development. Although China stillhold the Doctrine of Absolute Immunity, the Doctrine of Restrictive Immunity is morereasonable for China in the future. It is necessary to legislate for State Immunity underthe Doctrine of Restrictive Immunity. This dissertation gives penetrative study oncommercial activity exception both in theory and institution, and also presents therelative legislation and the judicial practice in our state in order to supply somespecific suggestions to our legislation.This dissertation is made up of five chapters. Chapter one discusses thetheoretical basis of commercial activity exception, while the last three chaptersconcentrate on the design of specific institution of commercial activity exception.Chapter five gives the specific legislation suggestion of our state.Chapter one discusses the theoretical basis of commercial activity exception.During the development of State Immunity, the most influential theories are theDoctrine of Absolute Immunity and the Doctrine of Restrictive Immunity.Considering the development of the theory of state immunity in major contraries, thetheory of state immunity has a strong epochal character. There is a great change sinceSecond World War, and the change lies in the adaptation between the theory and thedevelopment of international society. In the light of the reality of international society,the Doctrine of Restrictive Immunity is better reflection of sovereign equality, therelationship between sovereign and the conduct of the state, and relationship betweenthe state and individual. Comparing with the Doctrine of Absolute Immunity, the Doctrine of Restrictive Immunity is more reasonable, providing a solid theoreticalbasis to commercial activity exception. Although we still hold the Doctrine ofAbsolute Immunity, the Doctrine of Restrictive Immunity and commercial activityexception are not excluded. In the light of development, the Doctrine of Restrictive ismore coincide of our basic situation, and has a significant role in our futurelegislation.Chapter two focus on the expression, definition and range of commercial activitywhich are always involved in the same clause. There are three expressions which are“commercial activityâ€,“commercial transaction†and “commercial†in the legislationof state immunity.“Commercial activity†is the best one to show the purpose oflegislator and the character of the activity comparing with other expressions, and it isadopted by a large number of states. The definition of commercial activity has a closerelationship with the range of that. There are three ways to define commercial activity,direct, indirect and mixed. The direct way is to set the connotation of commercialactivity, which is adopted by the legislation of the USA and Canada. The indirect wayis to give the examples of commercial activity, which is adopted by the UK, Australia,South Africa and Singapore. The mixed way is the mix of the two waysabove-mentioned, which is adopted by Israel. Considering the international andinternal legislation, we should define the commercial activity both in direct andindirect ways, and the range of commercial activity should have three aspects: theexample of specific commercial activity, the exception of commercial activity and thesupplement of commercial activity. The exception of commercial activity and thesupplement of commercial activity should be compiled in our future legislation inaccordance of the basic situation of our state.Chapter three elaborates the decisive factors of commercial activity. As a core ofthe commercial activity exception, it has a direct influence on the result of a case.There are three models in legislation to deal with this question. The first one onlyconsider the nature of the activity to determine the behavior, which provides thebehavior people engaging in the public market should be identified as commercialbehavior. This model is mainly adopted by the USA and other developed countries like Germany and Belgium. The second is a mixed approach——the nature andpurpose are both considered, which is adopted by the United Nations Convention. Thedeveloping countries believe that just considering the nature of the behavior will leadto expansion of the scope of commercial behavior, and the purpose of the act shouldbe taken as an attribute criterion from safeguarding their own interests. TheConvention finally adopted a compromise approach. But the Convention not expresslyproviding the priority of the two for the application left a loophole. The third is noexpress criterion. According to the basic situation of China, it suggest that the natureshould be taken as the major factor, and purpose would be considered only when thereis a agreement of the parties of transaction or the practice of the state of the forum.Chapter four concentrate on the clause of commercial activity exception. Thereare three questions in this chapter, i.e. the specific commercial activity exceptionclause in jurisdictional immunity, other exception clause in jurisdictional immunitywhich has commercial factors and the commercial activity exception clause inexecution immunity. People have reached an agreement on other exception clause injurisdictional immunity which has commercial factors and the commercial activityexception clause in execution immunity. That should be some special rules with thecommercial behavior as the core content singled out as a separate immunity fromjurisdiction exception. A concrete manifestation of the above propositions is therelated articles on jurisdictional immunities of the ship and cargo. Separate regulationfor these provisions does not affect the research on commercial factors involved.Exception of implementation of the exemption in the commercial is certainly belongto the scope of the commercial exception. In contrast, specific commercial activityexception clause in jurisdictional immunity is more complicated, the main factors ofwhich are general jurisdiction, the contract obligation, the relationship betweencommercial activity and suit, and the exception of commercial activity clause. Thedetailed provisions of general jurisdiction are provided in the Sate Immunity Act ofthe USA, while only briefly mentioned in the Argentina’s legislation. The StateImmunity Act of most countries did not provide this issue, referring the relevantprocedural law to resolve. China can also take the same approach. The State Immunity Act of the United Kingdom is the representative of the special provisions the contractobligations, reflecting the special status of the contract obligations in the developmentprocess of Common Law, is not universal. The relationship between commercialactivity and suit, and the exception of commercial activity clause are the issues ofuniversal concern of the legislation, which should be used for reference to China.Chapter five analyzes the attitude, legislation and judicial practice of China’sState immunity. There is only one law which consists of four articles involving theState immunity in China, far from the need of practice. With the development of oursociety, there will be more and more issues involved State immunity for our courts todeal with, so the specialized State immunity legislation is imperative. Although Chinastill adheres to the position of absolute immunity in the latest judicial practice, thisdoes not mean to a final choice. In long term, the Restrictive Immunity is more in linewith China’s specific national conditions, and should be accepted in the legislation.Therefore, the definition and the range of commercial activity, the decisive factors ofcommercial activity, the specific commercial activity exception clause injurisdictional immunity, other exception clause in jurisdictional immunity which hascommercial factors and the commercial activity exception clause in executionimmunity should be contained in our future legislation.Finally, this dissertation analyzes and prospects the State immunity system andcommercial activity exception from a macro view. The moment, China should take theRestrictive Immunity doctrine and focus on the provisions of the commercialexception in the law of State immunity, which is in line with China’s nationalconditions and development need. Overall, from a perspective view of State immunityand commercial activity exception, there is no absolute good or bad for a theory andsystem itself. The crux of the problem lies in the relevance of theory and a country’scircumstances. A dynamic and long-term vision should be taken to treat thecommercial activity exception to State immunity. |
