Research On The Immunity Of Chinese Stated-owned Enterprises In Overseas Litigation Disputes

In recent years,state-owned enterprises have become increasingly active in overseas investment and international trade.What emerged at the same time were the overseas disputes that state-owned enterprises involved.In such disputes,some state-owned enterprises often intend to use the immunity enjoyed by the state or the central government in order to get out of the disputes because of their characteristics of being controlled or invested by the government.Therefore,how to distinguish the state-owned enterprise and its property with the state and its property,and thus determine whether the state-owned enterprise and its property is entitled to be exempted have become the focus issues that overseas courts need to solve.Regarding the issue of the status of exemption of state-owned enterprises when they are involved in overseas disputes and whether their property can be exempted from enforcement,there is no international standard for reference.When overseas courts encounter this problem,the usual practice is to base their domestic legislation or jurisprudence on foreign exemption laws and to combine the laws of the country where the state-owned company is sued.In this process,because of the differences in domestic regulations of different countries or regions,and the vague regulation of current legal definition of state-owned enterprises and their property and state and national property,so overseas courts will face judgments that confuse state-owned enterprises and their property with state and national assets.In addition to the problems encountered by overseas courts in determining the issue of exemptions,excessive claims by state-owned enterprises for exemptions may also cause problems.For example,it may lead to the confused definition between state responsibility and the responsibility of state-owned enterprises,causing that the overseas investments will encounter more stringent investment safety reviews in the future and influence other countries' judge on China's market economy status.This paper takes the domestic and foreign regulations on state-owned enterprises and their property exemptions as the theoretical basis,and uses the judgments of overseas Chinese courts in overseas disputes against Chinese state-owned enterprises as the basis for practice,and analyze the problems that state-owned enterprises and their assets may encounter in thejudicial practice of exemption.In addition,the study examines the root causes of inaccurate references to exemptions and the issues that may arise from them.It also proposes constructive opinions on litigation strategies,domestic legislation,and international treaties.Except for the introduction,this article consists of the following five parts:Part I studies the basic theories and exemptions of state-owned enterprises basic theoretical issues.On the one hand,it studies the domestic and foreign regulations on state-owned enterprises from the perspectives of concepts and classifications,and analyzes the deficiencies of current laws in China regarding the relevant provisions of state-owned enterprises.On the other hand,through the study of the United Nations Convention on Jurisdictional Immunities of States and Their Property(Hereinafter referred to as“ Convention”)and the sovereign immunity theory of major countries such as Britain and the United States,and the provisions of the British and Hong Kong theory on crown immunity,it is concluded that the exemption subject and exemption from the general conditions of the application of property.Part II is to study the problems encountered by Chinese state-owned enterprises in the dispute over overseas appeals in the determination of the subject of exemption.Based on the analysis of the provisions of the Convention,British and U.S.internal legislation,and Hong Kong's requirements for exempt entities,combining China' s legal provisions on state-owned enterprises and the judgment practice of state-owned companies' exemptions,we explored the state-owned enterprises' disputes in overseas disputes.Whether there is a qualification for exemption and issues encountered by overseas courts in the determination.Part III is to study the problems encountered by Chinese state-owned enterprises in disputes over overseas disputes regarding the determination of relevant property claims.First,it analyzes the provisions of the Convention and Britain and the United States on the scope of exempted property.Second,the relationship between state-owned enterprise assets and state assets in China is studied through the investor system and the company's control system.On this basis,with the help of state-owned enterprise property exemption practice in the courts,it is explored whether the state-owned enterprise property is eligible for exemption and problems encountered in overseas court decisions.Part IV is to study the problems that state-owned enterprises have continuously advocated for exemptions in disputes over overseas litigation.First,it analyzes the influence of state and state-owned enterprises on the responsibility of the state and state-ownedenterprises.Second,from the perspective of the U.S.investment security review of state-owned enterprises in our country,we studied the impact of future state-owned enterprises in U.S.investment.In addition,it also explored the impact of excessive use of exemptions or inaccurate quotes by state-owned enterprises on the market economy status of China.Part V gives some suggestions on the issue of exemptions for state-owned enterprises.First,it has a brief summary of the exemptions of the state-owned enterprises as a defendant in the disputes over overseas analyzed above,and to explore the reasons for the problem.Second,it provided suggestions from the three aspects of litigation strategy,domestic legislation and international treaties.