International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Industry [1988] 3 WLR 1033 at 1103–4 and 1157–8.
253 But see the case of Condor and Filvem v. Minister of Justice 101 ILR, p. 394 before the Italian Constitutional Court in 1992. 744 i n t e r nat i o na l l aw Immunity from execution 254 Immunity from execution is to be distinguished from immunity from ju- risdiction, particularly since it involves the question of the actual seizure of assets appertaining to a foreign state. As such it poses a considerable challenge to relations between states and accordingly states have proved unwilling to restrict immunity from enforcement judgment in contradis- tinction to the situation concerning jurisdictional immunity. Consent to the exercise of jurisdiction does not imply consent to the execution or enforcement of any judgment obtained. 255 Article 23 of the European Convention on State Immunity, 1972 pro- hibits any measures of execution or preventive measures against the prop- erty of a contracting state in the absence of written consent in any par- ticular case. However, the European Convention provides for a system of mutual enforcement of final judgments rendered in accordance with its provisions 256 and an Additional Protocol provides for proceedings to be taken before the European Tribunal of State Immunity, consisting ba- sically of members of the European Court of Human Rights. Article 19 of the UN Convention on Jurisdictional Immunities provides that no post-judgment measures of constraint, such as attachment, arrest or ex- ecution, against property of a state may be taken in connection with a proceeding before a court of another state unless, and except to the extent that, the state has expressly consented to the taking of such mea- sures as indicated by international agreement; an arbitration agreement or in a written contract; or by a declaration before the court or by a written communication after a dispute between the parties has arisen; or where the state has allocated or earmarked property for the satisfac- tion of the claim which is the object of that proceeding; or where it has been established that the property is specifically in use or intended for use by the state for other than government non-commercial purposes and is in the territory of the state of the forum, provided that post- judgment measures of constraint may only be taken against property 254 See e.g. Schreuer, State Immunity, chapter 6; Sinclair, ‘Sovereign Immunity’, chapter 4; Nguyen Quoc Dinh et al., Droit International Public, p. 453; Crawford, ‘Execution of Judgments’; A. Reinisch, ‘European Court Practice Concerning State Immunity from Enforcement Measures’, 17 EJIL, 2006, p. 803; H. Fox, ‘Enforcement Jurisdiction, Foreign State Property and Diplomatic Immunity’, 34 ICLQ, 1985, p. 115, and various articles in 10 Netherlands YIL, 1979. 255 See e.g. article 20 of the UN Convention on Jurisdictional Immunities. 256 Article 20 of the European Convention on State Immunity. i m m u n i t i e s f r o m j u r i s d i c t i o n 745 that has a connection with the entity against which the proceeding was directed. Section 13(2)b of the UK State Immunity Act provides, for instance, that ‘the property of a state shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale’. Such immunity may be waived by written consent but not by merely submitting to the jurisdiction of the courts, 257 while there is no immunity from execution in respect of property which is for the time being in use or intended for use for commercial purposes. 258 It is particularly to be noted that this latter stipulation is not to apply to a state’s central bank or other monetary authority. 259 Thus, a Trendtex type of situation could not arise again in the same form. It was emphasised in AIC Ltd v. Federal Government of Nigeria that this absolute immunity accorded to the property of a foreign state’s central bank applied irrespec- tive of the source of the funds in the account or the purpose for which the account was maintained, 260 while in AIG Capital Partners Inc. v. Republic Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling