A Study On The Exemption Of State In International Commercial Arbitration

The problem of State Sovereign Immunity is always an international issue which is theoretical and practical. With the development of economic globalization and trade liberalization, the state, which increasingly engages in the behavior of a natural person or a legal person, causes a series of commercial disputes between state and individual. International Commercial Arbitration, as an important means to resolve international commercial disputes, encounters the challenge from the State Sovereign Immunity, when it tries to resolve the main commercial disputes about state itself.In the general case, the state party have no objection, when it come to the jurisdiction of the arbitral tribunal and the jurisdiction of the State Court Enforcement of Arbitration Awards. But for the Enforcement of Arbitration Awards against State Property, in order to defend, the state party usually advocates to enjoy Sovereign Immunity. Developed countries generally use a Limited Immunity. Once the behavior of the state party is characterized as a commercial activity, the state party will no longer enjoy immunity from execution. While developing countries generally use an Absolute immunity. And the behaviors of the state are entitled to immunity from execution, such as China. However, as increasingly countries accept a Limited Immunity in the international community, China locates on a more awkward position in the international commercial, because our country insists on the Absolute immunity. On one hand. China have no jurisdiction to the property of the other countries. But with the Limited Immunity, other countries have jurisdiction to our national property. On the other hand, it makes commercial disputes back to a diplomatic solution instead of debt forgiveness, after gaining the success of advocation about the defense of Absolute Immunity Enforcement of Arbitration Awards. That seems to be deprived of the right to judicial relief with China from the private trade body. Through the elaboration of the basic theory and analysis of specific cases, this article explores the possibility about the feasibility Limited Immunity.First of all, in the first and second part, the author explains the basic concepts about Theory of State Immunity and International Commercial Arbitration, and elaborates the basic opinion that State Immunity can only exist in international commercial arbitration during the execution.Secondly, the third part mainly lists some relevant rules of State Immunity which is about the International Convention, International Commercial Arbitration Institutions, and some countries in the implementation with domestic law of Arbitral Awards. That covers the European Convention on State Immunity (1972), the Arbitration Rules of International Court of Arbitration and the International Chamber of Commerce (2012), Washington Convention in1965, the Convention on Jurisdictional Immunities of States and their property (2004), the amendment in1988of the foreign Sovereign Immunities Act (USA), the State Immunity Act in1978(UK).Thirdly, the fourth part analyzes the specific cases about the contract arbitration and treaty arbitration. Mainly, it systematically analyzes the judgment of the implementation of the court’s jurisdiction, judicial review, and the commercial nature of the act.Finally, the fifth part focuses on the principle of Absolute Immunity, points out the possibility of Limited Immunity in China, and makes effort to strictly limit the restrictions the business conduct qualitative Immunity and executable state property.The author believes that it is inevitable to adopt the Limited Immunity in China at the near future. However, as a developing country, it is a very worthwhile study of the theoretical and practical issues, that how to protect both the private interests and the national interests to the maximize.