Studies On Transnational State Torts

The year of2012witnessed the International Court of Justice’s judgment for Germany v. Italy, which, again, aroused much attention to the issue of state immunity. Concerning the catastrophe caused by Germany which violated the international law in World War II, the courts in Italy and Greece exerted the rights of jurisdiction and made judgments against Germany. Although the ICJ judgment claimed that the illegality of a state did not lead to the deprivation of its immunity, both international and national legislation had already confirmed that state court had jurisdiction for foreign-related torts. Some countries have already had a considerable number of related cases. Transnational state torts will definitely be increasing with the deepening of international communication, and therefore it is quite essential to solve these problems from the perspective of judicature.The dissertation consists of three parts:introduction, body and conclusion. The introduction is intended to explain the significance and value of the thesis, as well as the research perspective. The dissertation will discuss jurisdiction, application of law and recognition&enforcement of judgments. The introduction also makes a summary and commentary on the present studies, both at home and abroad, on transnational state torts. Besides, it also points out the approaches which the dissertation is going to employ.There are altogether six chapters in the body; the contents are as follows:Chapter One aims to explain several fundamental issues about transnational state torts. Firstly, it defines transnational state torts, which refers to state torts whose victims are civil subjects but the relationship itself possesses international elements, and then it specifically elaborates upon the characteristics and categories of the relationship. Besides, the chapter also analyzes the role of a state as the infringer, the settler and the participants in transnational state torts relationship.Chapter Two focuses on the introduction of the legal conflicts about transnational state torts. Transnational torts compensation has gradually been affirmed by the international community since the early20th Century. Compensation systems in different countries differ greatly. This chapter mainly discusses the differences and similarities of several key issues, such as the imputation principles, the range of compensation and damage, as well as the standards and forms of compensation in different countries. The tremendous difference of legislation determines how a court selects the law, which will directly influence the ultimate result of the case.Chapter Three discusses the jurisdiction in transnational state torts. At the very beginning, the chapter expounds that transnational state tort should be an actionable issue and then from the perspective of the legislative and juridical practice practices, introduces the specific standards adopted by the international community. Considering that foreign-related tort is an important and special category in transnational state torts, the chapter therefore gives a special introduction to the influence of state jurisdiction immunity to domestic jurisdiction. Secondly, it introduces specifically the impact immunity principle produces upon transnational state torts. After investigating and analyzing the practice of several countries, the article holds that high-level courts which have essential linked regions should give the first trial for the case of transnational state torts.Chapter Four expounds the application of transnational state torts. Initially, the chapter demonstrates numerous theoretical issues about the application of law, indicating that not only several public international law theory such as Act-of-State Doctrine, the extraterritorial application of foreign public law, dispute on the nature and implementing of international law, but also some private international law theories such as the division the principles, the procedure, the single segmentation theory, directly applicable law theory, reservation of public order theory and so on have profound influence on the application of transnational state torts. The latter part of the chapter indicates that some international laws, such as human rights law, state jurisdiction immunity system, state responsibility system have already been or are going to be quoted, however, the nation laws such as lex loci delicti, lex fori, the law of the most significant relationship have much more chance to be cited.Chapter Five focuses on recognition and enforcement of judgment of transnational state torts. This chapter initially points that the enforcing state should divided it into four categories:domestic torts judgment and foreign country torts judgment that are made by one’s own courts or made by the foreign courts. After reviewing the related international legislation and part of specific practice, it indicates that the enforcing country should build recognition and enforcement system based on difference of the categories of judgment of transnational state torts.Chapter Six suggests how to construct the system of transnational state torts in China. This chapter initially discusses how to construct the jurisdiction system and indicates that China is supposed to certify the jurisdiction for the cases happening in China and the other cases related with China. Moreover, those cases are supposed to be accepted as the first trial in Chinese Higher People’s Court. In terms of legal application, it is supposed to adapt to the international laws and conventions. China should consider distinguishing state behavior qualities to make it apply to different choice models of law and should adopt subjective and objective choice method. In terms of the recognition and enforcement, the dissertation indicates that China has not built the tort judgment made by foreign court and the tort judgment of foreign state, so the legislation in the future should be completed and certify some specific institutes such as the executive body, procedure, pattern, conditions and so on.After summarizing the research results, the conclusion part will still stress on some uncertain issues mentioned in the former chapters. For instance, the possibility of the Universal Civil Jurisdiction for transnational state torts, the legitimacy of acting state exclusive jurisdiction for torts in the domain, the relationship of Jus Conges with state immunity, the feasibility of sovereign behavior torts designed for general conflict rules. Although these problems have been referred to in the former chapters, the research is far from being enough. Therefore, the author hopes that more and more people will invest in the research of transnational state torts.