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    The law of state immunity / Hazel Fox, CMG, QC; Philippa Webb.

    • Title:The law of state immunity / Hazel Fox, CMG, QC; Philippa Webb.
    •    
    • Author/Creator:Fox, Hazel, author.
    • Other Contributors/Collections:Webb, Philippa (Philippa Mahal), author.
    • Published/Created:Oxford, United Kingdom : Oxford University Press, [2013]
    • Holdings

       
    • Library of Congress Subjects:Immunities of foreign states.
    • Edition:Third edition.
    • Description:xliv, 645 pages ; 26 cm
    • Series:Oxford international law library.
    • Summary:"Although the restrictive doctrine now permits States to be sued in national courts for their commercial transactions, the doctrine of State immunity remains controversial, particularly by reason of high-profile national and international decisions such as Pinochet and Arrest Warrant. Despite the International Court's ruling in the 2012 Jurisdictional Immunities case that the plea of State immunity is procedural and is entirely separate from questions of State responsibility and any obligation to make reparation, controversy continues. Some argue that State immunity paves the way for State violations of human rights and further bars the prosecution of State officials for such acts. Others contend that the customary source of the doctrine is not a sufficient basis for regulation and that codification is the way forward. Furthermore, even when judgments are made in national courts against other States, the doctrine may make enforcement of these decisions virtually impossible. This fully restructured new edition provides a detailed analysis of these issues in a clear and accessible manner. It provides a nuanced assessment of the development of the doctrine of State immunity, including a comprehensive overview of the plea of immunity, its characteristics, and the exceptions, with a comparison of the employment exception as regards the foreign State and international organisations. It includes a coherent history and justification of the plea, arguing that a third model of State immunity despite its procedural nature permits the allocation of adjudicative and enforcement jurisdictions between the foreign and the territorial States. The United Nations Convention on Jurisdictional Immunities of States and their Property is thoroughly assessed, including its implementation by ratifying States. Through a detailed examination of the sources of law and of English and US legislation and case law, and a comparative analysis of other types of immunity, the authors explore both the law as it stands, and what it could and should be in years to come"--Unedited summary from book jacket.
    • Notes:Includes bibliographical references (pages 625-628) and index.
    • ISBN:9780199647064 (hbk.)
      0199647062 (hbk.)
    • Contents:Machine generated contents note: plea as one of mixed international and municipal law
      functions which State immunity serves
      sources of the law of State immunity
      recent development of the law of State immunity
      three models on which immunity is based
      Structure of the book
      State immunity as a case study of the structure of international law
      pt. I GENERAL CONCEPTS
      1. Institution of Proceedings and the Nature of the Plea of State Immunity
      institution of proceedings
      Immunity as a rule of international law
      role of national law
      Outline of the plea of State immunity
      Proceedings in court: criminal and civil
      2. Three Models of the Concept of State Immunity
      changing role of the independence and equality of the State
      First Model, the absolute doctrine: the independence of the State
      inability of the national court to enforce its judgments against a foreign State
      Second Model: the restrictive doctrine
      distinction into public and private law acts used as legal device in other areas of regulation
      merits and faults of the distinction into public and private law acts
      Third Model: immunity as a procedural exclusionary plea
      From bilateralism of rights to a vertical hierarchy?
      Assessment of the Third Model
      3. Plea of State Immunity Distinguished from Act of State and Non-justiciability
      Proceedings in national courts where a foreign State affects the court's exercise of jurisdiction
      Special features of proceedings where the State is party
      State Practice relating to pleas of Act of State and Non-justiciability: US law
      English law
      Act of a foreign State
      plea of non-justiciability
      Modification where `a foothold in domestic law'
      Modification where a procedural right of access
      Pleas of Act of State, non-justiciability and State immunity compared
      4. State Immunity and Jurisdiction: Immunity from the Civil and Criminal Jurisdiction of National Courts
      competing principle of sovereign territoriality
      extraterritorial extension of the State's jurisdiction
      Universal jurisdiction
      relationship of immunity to jurisdiction
      distinction into civil and criminal jurisdiction
      Additional jurisdictional links in civil proceedings against a State
      exercise of criminal jurisdiction over a foreign State
      pt. II SOURCES OF THE LAW OF STATE IMMUNITY
      5. Review of the Sources: Treaties and Projects for Codification
      International conventions relating solely to State immunity
      resolutions of international bodies
      Decisions of international tribunals
      Decisions of national courts
      Treaty practice as a source
      1926 Brussels Convention and the 1934 Protocol
      1972 European Convention on State Immunity
      Projects for codification by governmental and non-governmental bodies
      6. Restrictive Doctrine of State Immunity: Its Recognition in State Practice
      Early development
      formulation of a general rule of immunity of the State
      Common law jurisdictions: UK law
      US law
      Other common law jurisdictions
      development of the restrictive doctrine in civil law countries
      Russia and other East European Countries
      African and Asian States
      7. English Law: The UK State Immunity Act 1978
      Status
      General structure of the UK State Immunity Act 1978
      Definition of the foreign State
      Waiver
      exceptions to immunity: non-immune commercial activities
      English law: immunity from enforcement
      Recognition and enforcement of foreign judgments given against foreign States
      English law: procedure
      Civil Procedure Rules
      Proof of the status of a foreign State or government
      Commencement of proceedings against a foreign State
      Service of Process
      Burden of proof
      8. US Law: The Foreign Sovereign Immunities Act 1976
      Immunity from adjudication
      General structure of the Foreign Sovereign Immunities Act 1976 Jurisdiction
      Definition of the Foreign State
      Waiver
      Exceptions to immunity from adjudication
      Alien Tort Act 1789 and the Torture Victim Protection Act 1991
      Anti-terrorism and Effective Death Penalty Act 1996, the Seventh Amendment to the FSIA
      Immunity from execution of the State and its property
      Amendment of the FSIA relating to execution against State property
      9. 2004 UN Convention on Jurisdictional Immunities of States and their Property: General Aspects
      Legislative history: the ILC's work and its consideration in the United Nations
      Status of the Convention
      Interpretation of the Convention
      Structure of the Convention
      general rule of immunity in the Convention
      Exclusions
      general assessment of the Convention
      Implementation by States which have ratified the Convention
      pt. III CURRENT INTERNATIONAL LAW OF STATE IMMUNITY
      10. Definition of the Foreign State
      External attributes as an independent and sovereign State
      Recognition of a State or government
      Internal attributes of the State
      Head of State
      Constituent units and political subdivisions
      State agencies
      Representatives of the State: Individuals
      Central banks
      11. Consent of the Foreign State: Waiver and the Arbitration Exception
      nature of consent of a foreign State in proceedings in national courts
      Consent under the UN Convention
      Consent of the State to the exercise of jurisdiction by the court of the forum State
      Consent by choice of jurisdiction as constituting waiver
      Counterclaims: matters covered by waiver
      Waiver and the arbitration exception
      UNCSI Article 17 arbitration exception: limitations
      12. Concept of Commerciality
      Three requirements for an exception to immunity
      Acta jure imperii
      Acta jure gestionis
      Techniques for determination of the commerciality of the act
      Evaluation of the restrictive doctrine
      13. Immunity from Adjudication: the Proceedings in which Immunity Cannot be Invoked, the Commercial and Other Exceptions
      exception for commercial transactions
      exception for ownership, possession and use of property
      taking of property in violation of international law
      exception for infringement of intellectual property rights
      Participation in companies or other collective bodies
      exception for ships owned or operated by a State
      14. Immunity from Adjudication: The Employment Exception in respect of (1) A Foreign State and (2) An International Organization
      (1). foreign State's immunity and the exception for employment contracts
      three Models of employment contracts with a Foreign State
      exception for employment contracts in UNCSI Article 11 (2)
      Circumstances where the rule of immunity still prevails UNCSI Article 11(2)
      (2). international organization's immunity and the exception to immunity for employment contracts
      Allocation of responsibility in respect of employees of an international organization
      Employment contracts of the international organization and of the foreign State compared
      15. Immunity from Adjudication: The Territorial Tort Exception
      pt. One UN Convention Article 12
      Legislative history
      Jurisdictional connection
      Applicable law to determine cause of action
      Types of tortious conduct
      Exclusions
      pt. Two impact of the Jurisdictional Immunities Judgment
      Three controversial types of loss
      16. State Immunity from Enforcement: General Aspects
      reasons underlying no enforcement against State property
      State Practice: the general rule and modifications
      Immunity from enforcement in the UN Convention
      State immunity from measures of constraint in connection with proceedings before a court
      distinction into pre- and post-judgment
      Types of coercive measures
      Coercive measures against the State representative
      Subject-matter of coercive measures
      17. Three Exceptions to Immunity from Enforcement and the Five Categories of State Property listed as Immune
      three exceptions to the General Rule of Immunity from enforcement
      Consent of the State
      Allocation of State property by the State
      Use or intended use for commercial purposes
      five categories of State property listed as immune
      Diplomatic property
      Military property
      Central bank property
      Cultural heritage of the State
      State property forming part of an exhibition
      Conclusions with regard to Chapters 16 and 17
      pt. IV OTHER IMMUNITIES
      18. Immunity of Individuals Acting on Behalf of the State
      head of State
      Immunities of other high-ranking officials
      Special missions
      Immunity ratione materiae of State Officials
      19. International Organizations and Special Regimes
      International organizations
      Diplomats and the diplomatic mission
      Consular immunity
      Visiting armed forces
      Other issues: private military and security companies and policing and law enforcement
      pt. V CONCLUSIONS
      20. Taking Stock.
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