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Sovereign immunity: Difference between revisions
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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. | 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==== | ====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 | 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 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 | 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 resulting contract has nothing at all to say about sovereign immunity; in the other, the record of thrust and counter-thrust 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 should not apply either? | ||
===Contractual waiver of sovereign immunity=== | ===Contractual waiver of sovereign immunity=== | ||