International Commercial Arbitration In The Execution Of The State Immunity

With the development of economic globalization, more and more countries participate in the business transaction as a civil subject. Usually, the nation will come to an agreement with the investors to settle the dispute by arbitration, but in the process of enforcement of arbitral awards, if the state immunity is quoted, the investors’hope that through arbitration agreement to protect their own interests would be affected. Generally speaking, relating to the recognition and enforcement of the international commercial arbitration whose main body is the state, it should be also applied to the state immunity rules "New York Convention" and the nation. The theory of state sovereign immunity mainly has two systems, they are named as national sovereignty absolute immunity principle and the principle of national sovereignty restrictive immunity respectively. Because the doctrine of state immunity are different in different states, these will make the same arbitration produce different results in different execution court. Therefore, in the international commercial arbitration during the execution of the state, how much does the state can enjoy immunity is the key point of this paper. FG v. Congo case is the first time that Chinese court accept foreign sovereignty as the defendant’s case. This paper takes FG v. Congo King case as the foundation, mainly discussed in four parts:In chapter Ⅰ, the paper mainly introduces the different positions on the principle of state sovereignty immunity, it can be divided into the doctrine of absolute immunity and limited immunity principle, as well as the interpretation on "European Convention on state immunity""UN Convention on Jurisdictional Immunities of States and their property". The limited immunity principle has become the development tendency of International exemption theory, but it still does not become the customary international law. At the same time, this paper has an analysis on the criteria for limited immunity principle when the states are engaged in commercial transactions and it also clearly indicates in which aspects should the country enjoy immunity under the application of restrictive immunity principle.In chapter Ⅱ, the paper focuses on the waiver of state immunity during the implementation of international commercial arbitration. It also analysises how much the state immunity has been abandoned in the national arbitration agreement. Generally speaking, the behavior of countries signed the arbitration agreement means that the state has executed implicitly to give up the court’s jurisdiction to immunity, but this implied giving up just include the matters that relating to the arbitration, which shall not extend to immunity from execution, the execution exemptions should be abandoned. Through analysis, because the implementation of the national legislation on State Immunity and practice are different, so an arbitral award in different countries may have very different results, which resulted in selection of the court are quite serious.In chapter III, this chapter is complemented by a case, through the analysis of international commercial arbitration award in the implementation of the state immunity rules’ application, pointing out that in the stage of implement arbitration award, the states tend to enjoy state immunity. Because each country’s state immunity has differences in legislation and practice, which make the same arbitration produce different results in different countries. This can make choose court phenomenon is more serious.In chapter IV, from the analysis of our existing legislation, diplomatic practice and treaties, it can be easily saw that our country is a state that always insists on the absolute immunity theory. But in the situation that limited immunity principle has become the tendency of development, it is necessary to change the existing attitude towards the principle of state immunities, and enacting a law with Chinese characteristics exemption to show our position.