The Position of Foreign States before National Courts: Chiefly in Continental Europe

By Eleanor Wyllys Allen | Go to book overview

CHAPTER I FUNDAMENTAL CONCEPTIONS REGARDING IMMUNITY

AN analysis of the position of foreign states before national courts starts with the general proposition that they are immune from suit, and proceeds to define and qualify this statement. Such an analysis involves an investigation of the connotations of the term "state." What entities may successfully claim the immunity, and under what circumstances? Can the plea be availed of by states comprising the units of federal republics, dominions of the British Empire, protected states, states under mandate, or those with unrecognized governments? Does the immunity apply only in time of peace, or does it obtain in periods of broken diplomatic relations or even of war between the respondent state and that of the forum? The analysis must also probe the exceptions to the general rule. Are there some matters so closely involving the political economy of the state of the forum that even the usual immunity of the foreign state must give way before this superior interest? Is the exemption founded upon lack of competence on the part of the courts, or upon an immunity which attaches to the sovereign entity? Assuming that it is technically an immunity, must it be pleaded by the respondent state? May it be waived? If so, how? Must it be done coram judice, or is a general statement of intention to waive sufficient? Should willingness to submit to the local jurisdiction be evidenced by contract between the parties, or incorporated in a treaty between the states involved? If it be agreed that the submission need not be express, from what sort of acts is it to be implied? If a state itself brings suit in the courts of another, is that fact evidence of a willingness to abide by the rules of the court regarding surety, costs, discovery, etc., and to submit to counterclaim? Shall submission be seen in the fact that a state acts not in the character of a

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