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CHOVANCOVÁ, K.: State Immunity in
International Arbitration and Commercial Practice. Part I.: Historical
Development, Waiver of Immunity.
Právny obzor, 100, 2017, č. 4,
s. 372 – 390.
Abstract. Theory of restrictive sovereign immunity
substantiated itself as wishful, but still not a complete replacement of its
older sibling, being obsolete absolute immunity from both jurisdiction and
enforcement of arbitral award. Actually, it is widely known that a right of the
party to the international arbitration to properly enforce an arbitral award,
rendered in its favour against the state, stays a controversial issue. It may be
submitted that the aforementioned situation is a courtesy of a residual
application of the theory of absolute sovereign immunity - a pain in the neck of
traders with its quite disappointing effect, when considering the contemporary
modern business world, that both respects and enjoys the doctrine of restricted
immunity, and its division between transactions jure imperii and transactions
jure gestionis. In particular, this concept secured access to justice for
private actors when trading with states. It may be submitted that both the
international commercial and investment arbitration are vivid examples of all
the possible doctrinal tensions, exposed by the international law of immunity.
The most recent accounts of relevant cases disclose a general shift toward the
doctrine of restrictive sovereign immunity and simply put, the restrictive
sovereign immunity ought to have a universal scope of applicability across the
globe. Except for introducing the issue of the state immunity in international
arbitration, this two part long study presents a brief account of the reasons
why the doctrine of restrictive immunity should dominate the ground of
international commerce. As the story develops, it will make three intertwined
observations in this respect.
Key words: state
immunity, the jurisdictional immunity, the immunity from execution, the
international arbitration, the transnational litigation
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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