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Sovereign immunity: Difference between revisions
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There is ''no'' good reason, except “[[Percy, who’s Queen?]]” | There is ''no'' good reason, except “[[Percy, who’s Queen?]]” | ||
===What [[sovereign immunity]] is=== | |||
[[Sovereign immunity]] comes in two varieties, both relating to forms of [[litigation]]: | |||
*[[immunity from suit]]: wherein one cannot take court action for [[breach of contract]] against a [[sovereign]] ''at all''<ref>[[Sovereign immunity]] does of course cover non-contractual disputes and infractions — the drunken ambassador who seeks to avoid prosecution for running over a local fishwife on his way back from a saucy cabaret is the paradigm case, but it is not relevant to the [[JC]] so we shall not speak of it.</ref>; and | |||
*[[immunity from enforcement]]: having successfully taken court action for [[breach of contract]] against a [[sovereign]] ''somewhere else'', one cannot then [[Enforcement|enforce]] that judgment against the sovereign’s assets by way of getting your money back. | |||
===What [[sovereign immunity]] isn’t=== | |||
[[Sovereign immunity]] can’t immunise a sovereign against parts of a commercial contract she has already performed, since the commoner doesn’t have to take action in that case. If the sovereign pays a sum owed, it stays paid. The sovereign cannot — by legal means — require those moneys to be repaid<ref>To be sure, a bossy sovereign can park its tanks on your lawn, waterboard you, and throw your children to its pet crocodiles of course, but this is a practical act, not a legal one and the [[JC]] cares not one whit for practical, extra-legal acts. What can one say about them, other than, “that was horrid”?</ref>. | |||
In the context of an {{isdama}}, therefore, all [[payments]], [[collateral]] and [[initial margin]] that a sovereign has ponied up<ref>Assuming you can persuade a sovereign to pony up initial margin of course.</ref> before it decides to cut your legs off, you keep. Your risk is the market movements between the point where it breaches your contract until you can close out your positions. | |||
If the sovereign wants to dispute payments it has already made it can either (i) dangle your children over its crocodile pit and ask you what you plan to do — again this is extra-legal behaviour and the [[JC can’t really comment on it (other that to agree it is horrid); or (ii) take action against you in a court of law ''in which case it has waived its [[sovereign immunity]] [[QED]]''. | |||
So one can get a little hyperventilatey about sovereign immunity. It isn’t ''that'' bad. As long as you don’t mind your children being fed to crocodiles. | |||
===The [[Sovereign Immunity Act 1978]]=== | |||
The [[Sovereign Immunity Act 1978]]<ref>https://www.legislation.gov.uk/ukpga/1978/33</ref>, 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. | The [[Sovereign Immunity Act 1978]]<ref>https://www.legislation.gov.uk/ukpga/1978/33</ref>, 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. | ||