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Sovereign immunity: Difference between revisions
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{{a|glossary|[[File:Percy and Queenie.png|centre|thumb|[[Percy, | {{a|glossary|[[File:Percy and Queenie.png|centre|thumb|[[Percy, who’s Queen?]]]]}} | ||
Why would an entity — regardless of its absolute executive power — think it should ever be entitled to claim immunity from suit or enforcement on a [[commercial contract]]? | Why would an entity — regardless of its absolute executive power — think it should ever be entitled to claim immunity from suit or enforcement on a [[commercial contract]]? | ||
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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. | ||
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. The commercial contracts exception allows a sovereign to be sued in the UK courts, but other part of the Act protect it against [[Injunction|injunctions]], the enforcement of judgments and [[Arbitration|arbitral]] awards. | ||
====Contracting out==== | |||
The parties can contract out of this in writing: Section 3(2) provides, “This section does not apply if the parties to the dispute are States ''or have otherwise agreed in writing''.” This can create problems for the [[Mediocre lawyer|verbally incontinent amongst our brethren]]. For is deleting a proposed contractual waiver of immunity in a draft of the contract, so that the executed contract is silent on the point, enough to mean the parties have “agreed otherwise in writing”? If you are feeling robust, you might think not. But what about if you have removed that provision, from an industry standard form, by stating in a separate schedule that the ''contractual'' [[waiver]] is disapplied? | |||
This is quite the metaphysical question: The two actions ought really to be the same; the difference only one of format. But in one case the end contract has nothing at akll to say about sovereign immunity in the other, the record of thrus and counterthrust remains in the fossil record. What could a positive statement that an (admittedly redundant) contractual waiver is disapplied mean, if not that the ''statutory'' waiver does not apply either? | |||
===Contractual waiver of sovereign immunity=== | ===Contractual waiver of sovereign immunity=== | ||