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

By Eleanor Wyllys Allen | Go to book overview

CHAPTER II
INAPPLICABILITY OF IMMUNITY

IT is usually said that there are two general exceptions to the doctrine of the immunity of a foreign state from suit in the courts of another country: when the action concerns real property located in the country of the forum, and when the respondent state renounces the immunity. It is submitted, however, that the latter is properly no exception to the rule, but rather an evidence of it, inasmuch as the state must enjoy the right in order to be able to renounce it. Hence the case of renunciation is regarded not as an exception to the rule of immunity, but as an additional instance of the inapplicability of the rule.

The single forthright exception to the doctrine of immunity from suit, but one upon which there appear to be very few decisions in point, is that of actions concerning real property situated in the state of the forum. Even here a distinction is usually made between "real" actions affecting the immovable property, where the jurisdiction is absolute, and those only incidentally concerned therewith, where jurisdiction may or may not be assumed, according to the general policy of the courts regarding public and private acts of a foreign state.1 The Department of Cassation of the Ruling Senate in Russia held that local courts were competent in a suit for repossession of land taken without authority from the Russian owner by the Italian government and used by it for a cemetery.2 The

Real Property

____________________
1
In Germany, the actions for which the forum rei sitae is exclusively competent are enumerated in the Code of Civil Procedure, and include those for the determination of boundaries, partitions and claims to possession (Zivilprozessordnung, Article 24). In Italy they are referred to generally as "real actions," azioni reali (Codice di Procedura Civile, Article 93).
2
Agarkov v. Italian Government, Supreme Court, Russia, April 7/20, 1893, Resheniia Grazhdanskago Kassatzionnago Departamenta Pravitel'stvuiushchago Senata, 1893, p. 170.

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