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

By Eleanor Wyllys Allen | Go to book overview

CHAPTER III
PROPERTY

THE considerations which limit the exercise of jurisdiction by national courts over foreign states apply a fortiori to interference with their property. The courts consider that the renunciation of the sovereign position of a foreign state, involved in submission to the jurisdiction of national courts, is not so drastic when confined to the judicial determination of the question at issue as when extended to execution upon its property.1 Hence consent to interference with property cannot be presumed from a willingness to litigate the case.

Foreign state-owned property may be involved before the courts in various ways.2 (1) The action may be directed against the property itself--an action in rem against movable property, a "real" action against immovable property, or an action for the enforcement of a lien. (2) An attachment of property may be sought as security for a debt. (3) An execution may be demanded of a judgment rendered against a foreign state. When the action is against the property itself, most courts will refuse to entertain it, irrespective of the nature of the res, unless it is in regard to immovable property situated in the state of the forum, and even then, the possible inviolability of the property itself must be reckoned with. When a libel was brought by United States citizens against an armed vessel in possession of French naval officers, the claim

Action in rem

____________________
1
Von Hellfeld v. den Fiskus des Russischen Reichs, Court of Concol. 808. This view is also expressed in the memorial accompanying the draft bill of January 29, 1923, submitted to the Swiss legislature. See Bundesblatt, 1923, p. 419.
2
Only those germane to the subject in hand are enumerated; others are easily conceivable. Cf. for example the case involving the exercise of eminent domain against property of Prince Liechtenstein in Czechoslovakia, Supreme Administrative Court, Czechoslovakia, June 22, 1929, Sbírka nálezů nejvyššího správního soudu ve věcech administrativních, XI b ( 1929), p. 807, No. 8055.

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