Template:Contractual waiver of sovereign immunity: Difference between revisions
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===[[Sovereign immunity]] and the [[Cassanova’s advice|Cassanova problem]]=== | ===[[Sovereign immunity]] and the [[Cassanova’s advice|Cassanova problem]]=== | ||
The fact that ([[Unless otherwise agreed|unless agreed otherwise]]) [[Sovereign Immunity Act 1978|Sovereign Immunity generally doesn’t ''apply'' to commercial contracts]] doesn’t stop [[Waiver of | The fact that ([[Unless otherwise agreed|unless agreed otherwise]]) [[Sovereign Immunity Act 1978|Sovereign Immunity generally doesn’t ''apply'' to commercial contracts]] doesn’t stop [[Waiver of immunities - ISDA Provision|industry standard commercial contracts]] purporting nonetheless waive that immunity which, in a ghastly ironic turn, makes sovereign immunity ''more likely to apply''. For you may be sure punctilious [[agent]]s, when representing sovereigns, will protest ''they do not have their client’s authority to waive its sovereign privilege'' (the one which doesn’t actually exist). They will therefore be compelled by their own prudent regard for the boudaries of tgheir agency to insist the waiver to be ''deleted''. Now in the architecture of the {{isdama}} this involves writing in the {{isdaprov|Schedule}}, something like “Section {{isdaprov|13(d)}} shall not apply to Party A or Party B”. This is more than mere silence on the matter: it is ''an explicit agreement to contract out of it''. Had the {{isdama}} 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 I don’t mention sovereign immunity (because it doesn’t exist), a sovereign and its agent is less likely to get het up about it. <br> | ||
Revision as of 09:57, 31 May 2019
Sovereign immunity and the Cassanova problem
The fact that (unless agreed otherwise) Sovereign Immunity generally doesn’t apply to commercial contracts doesn’t stop industry standard commercial contracts purporting nonetheless waive that immunity which, in a ghastly ironic turn, makes sovereign immunity more likely to apply. For you may be sure punctilious agents, when representing sovereigns, will protest they do not have their client’s authority to waive its sovereign privilege (the one which doesn’t actually exist). They will therefore be compelled by their own prudent regard for the boudaries of tgheir agency to insist the waiver to be deleted. Now in the architecture of the ISDA Master Agreement this involves writing in the Schedule, something like “Section 13(d) shall not apply to Party A or Party B”. This is more than mere silence on the matter: it is an explicit agreement to contract out of it. Had the ISDA Master Agreement 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 I don’t mention sovereign immunity (because it doesn’t exist), a sovereign and its agent is less likely to get het up about it.