A Study On Several Procedural Issues Of State Immunity Litigations

The conversion of the role of government and the emphasis of the private rights constituted the political foundation for the shifting from the absolute immunity to the restrictive immunity in the theories and practices of state immunity. From1970s, some countries have made legislation on state immunity, which is the legal basis for the existence of the restrictive immunity. Some countries have practiced the restrictive immunity in their judicial practice, even though they have no legislation on state immunity yet. In such background, the sovereign states and their governmental departments or agencies were sued frequently in foreign courts. In the process of litigation, due to the special identity of the subject of state immunity of the defendants, some procedural practices are different from other proceedings. This dissertation researches the rules and practices about the issues of procedure in the state immunity legislations, treaties and judicial practice. It makes some careful discussions on the legitimacy of these special rules and practices of procedure, and tries to propose some countermeasures when China being sued and suggestions for the future legislation of China.This dissertation consists of eight parts. The main contents are as follows:The introduction section mainly introduces the background and the significance of this thesis, and describes the ideas and methods of researching.There are some special rules or practices on certain procedural issues whether in the state immunity laws and treaties or in the litigation practices. But, the research about such procedural questions is not comprehensive. However, these special rules or practices on certain procedural issues are very significant for the state immunity, which will achieve a direct impact on the defense of the immunity from jurisdiction.Chapter1focuses on the speciality of state immunity litigation and points out those certain procedural issues are different from that of other litigations. The double characteristics of legal issue and political issue of state immunity theoretically lead to that the political risk and the complexity of the litigation involving the issue of state immunity is much higher than other litigations. Domestic legislations and treaties of state immunity have provided some procedural provisions, such as service, privileges and immunities during the proceedings and default judgment. In the judicial practice, there have been some special practices, such as diplomatic intervention, appearance and the burden of proof. These special rules of procedure and practices are the main contents of this dissertation. China’s future legislation on state immunity should include the provisions on such special procedural issues.Chapter2introduces the questions of domestic competence mainly based on the competenceal rules in FSIA as example. In addition to sovereign immunity, the issue of the domestic competence of the state immunity litigation is actually domestic legal issue. The substantial connection is emphasized when the courts determine their competence in some nations. But. the FSIA of the United States also establishes a more lenient standard called "direct impact". In addition, in the United States and Australia, the federal courts have exclusive competence over the state immunity litigation. These special competence rules for the foreign nations provide some basis for counterpleading the competence of the courts. For our China, when is sued in the United States, we should seize the best time to plead the transfer of the competence, and make full use of the "direct impact" to counterplead the court’s competence.Chapter3focuses on the service for the foreign states. The existing state immunity legislations almost include the provisions of service, which focusing on the channels and orders of service. For the channels of service of process, the diplomatic channel is widely adopted, the postal channel is restricted and the channel of announcement is excluded. Above of all reflect the emphasization on the effect of actual notice of the defendant. Such provisions and practices of service indicate the due process to guarantee the state immunities of the defendents. The provisions and practices of service of FSIA are more complex than that of Britain.When as a defendant in the foreign courts, China should make full use of the provisions of service in the state immunity act. In our future legislation on state immunity, the provisions of service should be included without the distinction between the persons to be served and should not adopt the postal channel and the channel of announcement.Chapter4analyzes and compares the question of diplomatic involvement in the state immunity litigations. Some Ministries of Foreign Affairs were involved in the trial process of state immunity cases in order to give great respect for the sovereignty of foreign states and avoid possible political risks. Based on the combing and analysis on the state immunity suggestions of the U.S. Department of State and the letters of China’s Ministry of Foreign Affairs in FG Company v. Congo, we can conclude that the diplomatic involvement is only a specific question in the specific judicial process.Chapter5introduces and elaborates the question of procedural immunities of foreign state during the proceedings. Although many nations have gradually abandoned the principle of absolute immunity on the issue of immunity from jurisdiction, they continue to support the principle of absolute immunity on the issue of procedural immunity. The immunities from procedure are mainly reflected in the follow as foreign states should not bear the procedural sanctions, mandatory commands or judicial costs guarantees. When China is sued, we should plead the procedural immunities. Our future legislation on state immunity should include the content of procedural immunities without judicial costs guarantees.Chapter6analyzes the question of the default judgment against foreign states. The existing state immunity acts, treaties and judicial practices all allow the courts to render default judgments against foreign states. The conditions and the relief procedures are specially provided in the acts and treaties, such as the longer respondent deadline given to foreign states, and more emphasis on the effect of actual notice, and the courts’obligation to initiate the investigation of the issue of state immunity. The purpose of these special provisions is to give foreign nations more guarantees, which reflects the caution for the default judgment against foreign nations. When China is sued, the proper way is to hold the idea that we enjoy immunity from jurisdiction and to plead the jurisdictional objection in time in order to prevent the default judgment. In our future legislation on state immunity, the requirements of the default judgment against foreign states should be detailed and reasonable.The last part is the conclusion, in which the proposition of the due process guarantee of the state immunity litigation is given. While taking into account the special status of the defendant and setting up some special procedures specifically for foreign countries in the field of state immunity, the rules of procedure are not beyond the boundaries of procedural rationality. Moreover, the functions of due process guarantee in the proceedings of state immunity are diverse. When China is sued, we should hold such weapon as due process guarantee. Our future legislation on state immunity should construct Chinese model and be based on the legitimacy of the judicial process.