Arbitration As An Exception In The State Immunity Act 1978 Of The United Kingdom And The Enlightenment To China

State Immunity refers to the right owned by a state which the state and its property could be immune from the jurisdiction of the courts of other countries, a state may make an express or implied waiver. With the development of international arbitration involved a state, there are arguments regarding to the issues including whether the writing arbitration agreement could be deem as an implied waiver of state immunity, how to identify the waiver, and the extent of the waiver, etc. As a country which has a long history of state immunity and arbitration, there are many rules in the State Immunity Act 1978 and case laws in the United Kingdom, which could be important lessons for China. For a long time, we lack of relevant rules and practice of state immunity in arbitration, while the case of FG Hemisphere Associates LLC v Democratic Republic of Congo trigger concern of the rule of state immunity in China. This paper falls into three chapters, from the arbitration exception in the State Immunity Act 1978 of the United Kingdom to enlightenment for China:The first chapter mainly analyzes the legislation background of the State Immunity Act 1978 of the United Kingdom, including signing on the Europe Convention on State Immunity, the controversy on “absolute immunity rule” and “restricted immunity rule” in case law, promulgation of the Foreign Sovereign Immunities Act of the United State, which reflect inevitability of legislation on state immunity in the United Kingdom and impacts on it from these factors.The second chapter mainly analyzes whether the arbitration agreement in writing could be deem as a waiver of state immunity and related issues, including whether the dispute in arbitration is limited in civil or commercial contracts, whether the arbitration have to be conducted in the UK or applying in English laws. The chapter discusses the articles in the act and explanation in case laws, the main conclusions are as follow: According to the statements, the State Immunity Act 1978 doesn’t make limitation on the arbitration expectation, the disputes in the arbitration don’t have to be in civil or commercial contracts, and the arbitration don’t have to be conducted in the UK or applying in English laws. As for enforcement, the property of state which used for commercial purposes couldn’t be immune from jurisdiction of courts. But these rules have been triggered lots of arguments in practice, and there are different explanations in case laws. As an alternative dispute resolution, arbitration need to be supervised and assisted by competent courts, however, it will affect the benefit and relationship of states if it was restrained too much.The third chapter mainly analyzes the Chinese law, treaty and cases involved China related to state immunity, discusses the enlightenment to China from the rules and practice of arbitration in the State Immunity Act 1978 of the UK, namely we shall formulate a law on jurisdictional immunities of states and their property, with enlightenment of foreign legislation. China has signed on the United Nations Convention on Jurisdictional Immunities of States and their Property in 2005, legislation on state immunity not only reflects Chinese attitude of state immunity, but also suggests application of the convention by translating in to domestic law. When we are formulating the law on state immunity, we shall consider the national conditions and actual requirement of our country, to draft a state immunity law served the interests of the whole country. While regarding to the arbitration expectation of state immunity, we have to learn from above laws and practice in the United Kingdom. In order to establish a clear standard, the rule of arbitration shall cover the whole process of arbitration, the diverse situations when states participate in arbitration, to uniform the judgments of relevant cases.