State-owned Enterprises Cited Sovereign Immunity Research In The US Courts

Countries are getting more and more involved in the international economic activities,and State-owned Enterprises(SOEs)are playing a more and more significant role in the globalization.Especially for developing countries,using SOEs to participant in the globalization and develop the domestic economy has been a very important method.Because of the special state sovereign background of SOEs,whether it can be deemed as tools for economic policy execution of the country under the name of “state owned”,thus becoming an extension of the government in fact and enjoying sovereign immunity? It is the question that this thesis will explore.This thesis firstly analyzes the developing trace of the state immunity theory in international law-from absolute immunity principle to restrictive immunity principle.This thesis will analyze the history of U.S.state immunity development in detail with the aim of giving a comprehensive theory framework background,in the meantime also some principles and definitions will be displayed in this chapter regarding the U.S.Foreign State Immunity Act(“FSIA”): the practice of the U.S.court applying state immunity actually often affected by politics.So this is another consideration of the first chapter in introducing the world and U.S.state immunity system-if SOEs want to enjoy sovereign immunity in the U.S.court,it can firstly use politic influence to impose pressure on the court.When a U.S.is judging if a foreign state entity can enjoy foreign immunity in the law suit,it will usually take two steps: first,if the foreign state entity constitutes an immunity entity under FSIA.Second,if the foreign state entity meets the requirement of being an immunity entity,if there is any exemption.If there does exist certain exemption,then it shall still have no rights enjoying immunity,if not,then the immunity status is finally obtained.This thesis is mainly following the above steps applied in the U.S.court.Chapter two will introduce the standard when U.S.court is judging if SOEs meet the requirement of being an immunity entity.Because SOEs cannot be the foreign state(usually foreign state refers to central government),usually SOEs need to prove that they are instruments of foreign state.When deciding if a SOE is a foreign instrument,court has three main requirements: 1.independent legal entity,corporate or other.2.Organ of foreign state or political division or major shares or other ownership owned by foreign state or political division.3.non-U.S citizen,nor established under a third state law.This thesis will combine the specific law and cases to analyze the real practice of U.S.courts.Chapter three will introduce the most important exemption in the U.S.state sovereign immunity law-commercial activity exemption.Commercial activity exemption has three major requirements as well: 1.definition of commercial activity.2.“Based on” standard.3.Jurisdiction nexus.This thesis will also combine the specific law and cases to analyze the real practice of U.S.courts.Of course,in the end,notices and warnings will be concluded accordingly.SOE revolution has long been a major issue ever since the opening policy is adopted.SOEs are leading the national economy,and definitely play a significant role in Chinese economy.In the past 3 years,Chinese SOEs are getting more and more involved in the globalization,overseas investment is growing rapidly,and U.S.is the most attractive destination of SOE investments.So exploring how to protect SOEs in U.S.is the major purpose of this thesis.