Problems Of State Immunity In The International Civil And Commercial Arbitration

State immunity has become a principle of international law for several centuries. In those centuries the concept and the scope of state immunity have been experienced constant change.The author of the thesis focuses on the issue of state immunity issue in international civil and commercial arbitration who holds a point of view that the topicof the thesis more practical than others.The disputes between China and foreign legal person and individuality arises along with the rapid development of Chinese economy, but currently our country do not make laws about state immunity only some related provisions in the Civil Procedural Law of the People's Republic of China and General Principals of the Civil Law of the People's Republic of China and Regulations of the People's Republic of China concerning Diplomatic Privileges and Immunities and so forth. When disputes were emerged in both sides, the relative departments mainly rely on diplomatic method to solve the disputes but not in legal form as the result of absence of law. At the circumstances that there just a few disputes, the diplomatic method can solve the problem in a certain degree, but in modern times diplomatic method can't solve the controversy efficiently. The diplomatic method lacks unity and foreseeability which will harm the foreign investment in China.After analyzing the cases we can draw a conclusion that China insists on the absolute immunity, only on special circumstance abandoning immunity will be taken in some cases. The attitude which China holds is inconsistent with international trends that most European countries have established the restrictive immunity theory through legal precedent and making law on immunity. The author of this thesis thinks the reason that China insists on the absolute immunity principle is Chinese economy is dominated by public ownership. There are many state-owned enterprises and public-own enterprises in China.In order to prevent the loss of state-owned assets, so the absolute immunity principle is established in China. With the rapid development of Chinese economy, more and more companies go abroad for investment or setting up factories, but the disputes will arise for the difference of law between two countries. If the foreign counts tried those cases on the basis of their domestic law and executed the property of Chinese companies, at that point China will be in an awkward position. Then whether we should take action against those countries? Obviously revenge is not the answer for discrepancy. As China has joined the WTO, Market economy will be fully established in China. In order to attract investment and protect the enterprises better, China has to transfer the absolute immunity to the restrictive immunity. The reason is simple. In modern times the civil and commercial transactions become more frequently than ever, especially governments participate in transactions among countries. If governments which have the privilege of immunity participate in commercial deal, it will lead to depriving the rights of private parties for effective relief. Then the governments will enjoy an improper privilege when they deal with private parties. China had been involved in some cases which related to state immunity.If we do not take into account the legal limitation and the problems of debt, the main core of the case also was whether the state is entitled to absolute immunity.After analyzing above, the author thinks China is in great need of making law in state immunity. Up to present many countries have made state immunity law including Foreign Sovereign Immunities Act of America in 1976, State Immunity of UK in 1978, State Immunity of Singapore in 1979, State Immunity of Canada in 1982 etc. Making law is a complicated work. We have to admit the legal system of China still need to be improved and perfected. In the circumstance of lacking state immunity act in China, How can we find a solution for the disputes arise in commercial deal? The solution is international civil and commercial arbitration. There is enough room for government or private parties to choose applicable law, time and location to solve the dispute by arbitration. Next the author will analyze the state immunity and figure out how to solve the disputes about state immunity in legal practice.