Sovereign immunity: Difference between revisions
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Note that the parties can contract out of this in writing. This can create problems for the [[Mediocre lawyer|verbally incontinent amongst our brethren]]. | Note that the parties can contract out of this in writing. This can create problems for the [[Mediocre lawyer|verbally incontinent amongst our brethren]]. | ||
It's a bit nuanced, but not much. | It's a bit nuanced, but not much. The commercial contracts exception allows a sovereign to be sued in the UK courts, but other part of the Act protect it against injunctions and the enforcement of judgments and arbitral awards. | ||
If you purport to waive, and the sovereign says NO, then you | This doesn't stop industry standard legal agreements purporting to waive immunity, which creates exactly the issue mentioned above, whereby punctilious agents, who represent sovereigns, protest they have no authority to waive a contractual protection (that doesn't actually exist) and therefore require the waiver to be deleted. Ie, they contract out of it. Had the contract only had the sense to shut up in the first place, there would have been no problem, on a [[what the eye don't see the chef gets away with]] sort of basis. | ||
If you purport to waive, and the sovereign says NO, then unless you want to rely on the [[parol evidence]] rule, you wilk struggle to argue you have agreed not to waive, thereby doing yourself out of the exemption, which the parties can contract out of. | |||
{{Seealso}} | {{Seealso}} | ||
Revision as of 15:07, 8 January 2019
Why would an entity — regardless of its absolute executive power — think it should ever be entitled to claim immunity from suit on a commercial contract?
There is no good reason, except “Percy, who’s Queen?”.
The Sovereign Immunity Act 1978[1], which provides (among other things) that a State is not immune as respects proceedings relating to a commercial transaction entered into by the State; or an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.
Note that the parties can contract out of this in writing. This can create problems for the verbally incontinent amongst our brethren.
It's a bit nuanced, but not much. The commercial contracts exception allows a sovereign to be sued in the UK courts, but other part of the Act protect it against injunctions and the enforcement of judgments and arbitral awards.
This doesn't stop industry standard legal agreements purporting to waive immunity, which creates exactly the issue mentioned above, whereby punctilious agents, who represent sovereigns, protest they have no authority to waive a contractual protection (that doesn't actually exist) and therefore require the waiver to be deleted. Ie, they contract out of it. Had the contract only had the sense to shut up in the first place, there would have been no problem, on a what the eye don't see the chef gets away with sort of basis.
If you purport to waive, and the sovereign says NO, then unless you want to rely on the parol evidence rule, you wilk struggle to argue you have agreed not to waive, thereby doing yourself out of the exemption, which the parties can contract out of.
See also
- Waiver of immunities - ISDA
- Template:Cdeaprov - CDEA
- Waiver of Immunity - GMSLA
- Waiver of Immunity - GMRA