Study Of State Immunity In International Commercial Arbitration

As an very important International Law principle, Jurisdictional Immunities of States and their Property is a popular field of study in International Law as well as a topic in the society under the background of economic globalization. Nowadays, states with civil identity has become more involved in the international commercial transaction. International Commercial Arbitration as an ideal disputes resolution mechanism, has often been chosen in the arbitration terms or arbitration agreements for the commercial contract to guarantee interests of both parties and to ensure the business. In an valid arbitration award, the declination to recognize and enforce the award by the state has become a big issue in front of the International arbitration tribunals and domestic courts. This paper will focus on the main issues based on Chad case and Congo case to address them in four parts:This paper first introduce the case of Chad and the case of Congo, the decisions and the main issues respectively to raise the issue in this paper as: first, about the absolute immunity rule and the restrictive rule and also the standing of China; second, the research of state immunity principle under international commercial arbitration.In the second Chapter, this paper will give a systematic statement of the theory of State Immunity and its development in the aspect of International Law. The absolute immunity rule and the restrictive rule will be addressed in different sections and special attention will be given to the standards of judgment of restrictive immunity rule, its current development trend. Restrictive rule will be shown as a main trend objectively. And this chapter will pave way for the following part as conclusion and suggestions.In Chapter Three, this paper lay emphasis on the State Immunity Issue under the International Commercial Arbitration. We will discuss the jurisdiction immunity and enforcement immunity, to specific talk about their concepts and form. The important part will landed on the point that the jurisdiction immunity and enforcement immunity have to be abandoned in jurisdiction session and enforcement session respectively. Signing for a arbitration term can be regarded as abandoning state immunity in silent way, but this effect should not cover the enforcement session.In the last session, the paper will analyze the practice, the current legal circumstances and problems of the state immunity in China. And to raise the suggestion that China should switch gradually to restrictive principle. In the current situation, China has no legislation on immunity of states and their property. The regulation in this regard is rare to see. The absolute immunity principle of China is not that sensible as shown in the Congo case. There is necessity for China to shift to restrictive rule and to carry out legislation in this as soon as possible. The conclusion part summarizes this paper. State Immunity is an important issue in today’s International Law with restrictive rule as an trend due to the reason that it protects individuals while sustain a healthy growth of economy. China should make clear the standing, to learn from other nations’ experience in certain legislation and to give our owns quickly. To appropriately apply restrictive rule and adjust absolute rule so as to facilitate our country’s further development of international economic transaction.