The restrictive theory of foreign state immunity at the crossroads: Towards a more coherent picture of legal rules on the 'commercial activities' exception.

摘要

(DIAGRAM, TABLE OR GRAPHIC OMITTED...PLEASE SEE DAI).;Foreign state immunity has long been the subject of international debate. Early conceptions of the doctrine of immunity depicted foreign states as unamenable to the jurisdiction of domestic courts. Immunity was absolute and judicial interpretations deferred to the equality and independence of sovereign states.;The ever increasing functions of the state have enhanced the complexities of the question of state immunity. They have also given rise to new legal thinking: that immunity should not be absolute, but restricted. The modern theory of Restrictive immunity has gained ascendancy in judicial and legislative formulations. Contemporary legislation in most jurisdictions have codified the restrictive theory of state immunity. At the core of this legislation lies the commercial activities exception which requires courts to deny immunity for the "commercial" activities of a state, while preserving immunity for "sovereign" acts.;Uncomplicated as this doctrine may appear, its application has given rise to numerous substantive, procedural and interpretational difficulties. Courts, academics, governmental and non-governmental bodies have strived to identify the contours and operational limits of the Restrictive theory of state immunity, but no unified practice has materialized.;The Restrictive theory of state immunity is at the crossroads. There is no doubt that in the field of judicial jurisdiction the non-immunity cases are on the rise, even if only because the "nature of the act" test is prevailing. But there remains an opaque zone where a clear swing of the pendulum cannot be made out and the final decision may be influenced by a consideration of the reasonable expectations of the parties, not tainted by subjective considerations of the purpose of the transaction.