A Comparative Study Of The Jurisdictional Immunities Of States Legislation And The Enlightenment To China

Jurisdictional immunity of states is a component of sovereign immunity and it means that the actions and properties of a state are immune from the jurisdiction of the courts of foreign states. The state immunity influences the balance between states and private persons, the development of international trades and even the relationship between countries so that we have to deal with it appropriately. Some countries have enacted their domestic acts to direct and support the exercise of jurisdiction of their courts in recent years; The United Nations then adopted a specific convention on state immunity in order to reduce the difference between countries and unify international practice. Therefore, China has to enact an act to response to the convention, as well as to protect the interest of our country and private persons. After discussing the basic theoretical questions and introducing the legislation and practice of USA, UK and some European countries as well as the UN convention, this paper raises the standpoint which China should insist in consideration of our former attitude and current condition.PartⅠillustrates the concept of jurisdictional immunity and the theories of restrictive immunity and absolute immunity. Then it analyzes the opinions of both supporters and dissenters and concludes that restrictive immunity theory will be accepted by international community and also be beneficial to developing countries. It finally discusses the mode of restrictive immunity so as to provide some references to our legislation.PartⅡresearches three complicated and important exceptions from immunity (commercial transactions, torts and submission to jurisdiction) by introducing the relating provisions of USA and UK and citing some cases. It also introduces the practice of European countries on several important matters and compares with that of the USA and UK. Moreover, it discusses some practical problems related to the foresaid exceptions.PARTⅢdiscusses the UN convention's provisions relating to commercial transactions, torts, submission and arbitration agreements, and then analyzes its reasonableness so that our legislation will comply with the convention and be more concrete.PartⅣis the most important part of this paper. It firstly introduces China's former practice, including experts'views, judicial and diplomatic practice and scattered provisions, to conclude that China had once insisted the absolute immunity theory but now may accept the restrictive immunity. Secondly, it discusses the necessity of enacting a specific act to change our attitude, implement the UN convention and protect the private persons'interest. At last, it puts forward the standpoint which China should adopt and analyzes the detailed provisions of commercial transactions, torts, submission to jurisdiction and arbitration agreements.