Template:Contractual waiver of sovereign immunity: Difference between revisions

'''Twist''': Industry-standard [[commercial contract]]s<ref>E.g.,the {{isdama}} and the {{gmsla}}.</ref> ''do anyway''. This creates more problems than it solves.

Waiving [[sovereign immunity]] is a faintly stupid thing to do if your [[commercial contract]] happens to be governed by [[English law]], since the [[Sovereign Immunity Act 1978]] [[Sovereign immunity|excludes any immunity of a state to a commercial contract]]. Now, to be sure, here arises a great opportunity for the [[chicken licken]]s in your [[litigation department]] to pipe up. “What if,” they will say, “the [[sovereign]] ''ignores'' the [[exclusive jurisdiction]] clause, and takes action against you in its own court? What then, say ye?”

You got me. But hang on a minute: can you really launch an action in your own court and, by the same lights, claim immunity from suit? Is this not having your [[Brexit means Brexit|Brexit]] cake and eating it too? And even if it isn’t<ref>SIT DOWN AT THE BACK with all your talk about counterclaims and enforcement of judgments.</ref> we are talking here about a [[sovereign]] who has, with the complicity of its own court system, ''already ignored one term of your [[contract]]'' ([[exclusive jurisdiction]]). Why would it respect the rest any way?

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 [[Waiver|waive]] that immunity which, in a ghastly ironic turn, makes {{t|sovereign immunity}} ''more likely to apply''. For you may be sure [[agent]]s, when representing sovereigns, will protest ''they do not have their client’s authority to waive its sovereign privileges''. They will find themselves ''compelled'', by the terms of their agency, to insist the waiver is ''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”. Is this  mere silence on the matter, or is it ''an explicit agreement to contract out of it''?