Oyumaa.V*

	《목차》
I.     Introduction The doctrine of state immunity and its property Types of restrictive state immunity and its property rights Conclusion

 

	《요약》

 

 

 

 

    I. Introduction

 

International private law is a relatively new research field in Mongolia due to its former socialist system. As private international law is steadily gaining more attention in the country, the right topic selection for examination was crucial.

On the one hand, with the current exercise of open foreign policy and its enhancing engagement in the international economic integration, the demand of the Mongolian state and its affiliated organizations to enter into relations with foreign legal persons and individuals is continuously increasing. On the other hand, thanks to its abundant natural resources the attraction of foreign investors into the country has just taken place.

Until recent times Mongolia lacked the experience in private international law, particularly in concluding major project agreements and accordingly its major project on use of “Erdenet” coal was regulated by international public law. These objective reasons had influenced me to conduct a research on “State as subject of international private law and legal status of its property”. The lack of independent and individual research studies on state participation in private international relations, specifically regarding the issues on “state’s jurisdictional and its property’s immunity” required both a very broad understanding of the complexity and a thorough research of the subject. As there is no specific case with regard to Mongolia, we had to examine cases from other countries. By being the very first research from a Mongolian researcher on this field, this paper aims to introduce this crucial point of the international law into the Mongolian jurisprudence and build a foundation for more detailed researches in the future.

 

    II. Doctrine of state's jurisdictional and its property's immunity

 

The doctrine of jurisdictional immunities of states and their property is one of the most intensely debated issues. When adopting the United Nations Convention on Jurisdictional Immunities of States and Their Property the General Assembly has defined the term” state immunity” in a following way: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.”[2]

This state of affairs stems from the substantive differences between various theories on state immunity as well as from divergent legal framework and its treatments on the issue across countries. Moreover, scholars substantially have varying perspectives on that matter.^[3]

A Russian scholar, M. M. Boguslavskyi, points out that “legal theory accommodates two main approaches to state immunity, one being "absolute" and the other "restrictive".^[4] In his work, Dr. T. Mendsaikhan states, “all countries adopted the theory of absolute state immunity from 19^th and 20^th century, from which the concept of a functional or restrictive state immunity had derived.^[5] 

 

        I. 1 The theory of absolute state immunity

 

The theory of absolute state immunity builds on the premise that, unless the state takes some action, it must never be subjected to the jurisdiction of the courts of another country without its own consent. The doctrine was underpinned by the legislation of a vast majority of socialist block countries. For instance, Article 65 of the Civil Code of the People’s Republic of China sets forth the principle of state property's immunity by providing that “State-owned enterprises, buildings, structures, equipment, and other core assets of state bodies shall not be used as collateral and payment of creditors claims”.^[6] The doctrine received support from many scholars in socialist times being regarded as the only one correct and legitimate.^[7]

However, in recent years the popularity of this doctrine has undergone some changes and the perspective of many scholars is now shifting towards the restrictive theory of state immunity.^[8] Respectively, the legislation of countries with the tradition of absolute state immunity has endured a transition and their courts decided on a number of cases, which might be considered interesting precedents. For example, in the case of Jackson v. People’s Republic of China (1986), the key facts related to lawsuits initiated by the holders of bonds issued by the Chinese government in 1911. In response to this claim, the government of China refused to assume any responsibility for the actions of previous governments and demanded the application of absolute state immunity. Although the court applied Article 1603(b) of the US Foreign State Immunity Act of 1976 and found that the action of the state in question was of a commercial nature, it had to recognize the absolute state immunity because the law could not have retrospective effect. At the time of adjudicating this case, China was not a follower of the restrictive state immunity doctrine and therefore the court decision stated that this theory should apply to countries where it is recognized but not to China since it adhered to the theory of absolute immunity.

   

 I. 2 The theory of restrictive state immunity

 

The main idea of the restrictive state immunity theory lies in the concept that any legal action against a foreign state may not be subjected without its consent to the jurisdiction of another state. The theory also implies the enforcement of a claim where a state may not forcefully take the property of another state without securing the consent of the latter. Entrenched in the majority of capitalist nations, the doctrine enhanced the role of the state as subjects in the private international law in the 70s and 80s of the 20^th century^[9] and these countries began to adopt laws permitting the restriction of its immunity. Even at the beginning of the 20^th century, the courts in some countries denied absolute immunity in the cases where the state was involved in commercial activity. The limitation of state immunity in Belgium and Italy in 1882, should be mentioned as prototypes.^[10]

In civil law countries, the shift from absolute immunity to restrictive immunity had undergone difficulties and the doctrine of restrictive immunity became effective only by means of legislative actions.^[11]

The doctrine of restrictive state immunity has now spread in many countries including the United States, Australia, Argentina, Belgium, Greece, Denmark, Canada, Great Britain, Singapore, Norway, Italy, South Africa, Pakistan, and Finland.

The Russian scholar M.M. Boguslavskyi notes: “In the second half of the 20^th century, the theory of restrictive immunity widely proliferated in legislation, court judgments, and treaties in many countries. This could be explained by the growing economic activities of states and its involvement in relation closely linked with international trade and financial markets. Both the number and variety of agreements concluded by states grew immensely. Very often, states sought credits from foreign banks and international financial organizations. For states pursuing policies to attract foreign direct investment in modern economic relations the question of state immunity became an important factor. In case of any potential disputes arising between investors and their host states, investors prefer to deal with states which allow the withdrawal of its immunity”.^[12]

    According to another Russian scholar I. O. Khlestov, “The scope of application of treaty provisions and international norms is widening so as to limit the immunity of foreign states. This trend is witnessed by legislative and judicial practices of countries where the theory of restrictive state immunity have been adopted. At the same time, basic norms of international law with regard to state immunity are becoming less common in application, even for those adherents of absolute immunity principle in certain types of cases”.^[13] The practical development of the doctrine can be traced back to international legal instruments such as the European Convention on State Immunity which was adopted by the Council of Europe in Basel on 18 May 1972 (which entered into force 11 June 1976), the Brussels Convention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships signed on 10 April 1926 (with additional protocol of 25 May 1934, and the United Nations Convention on Jurisdictional Immunities of States and Their Property.

The restrictive theory of state immunity provides that foreign states, their organs, and their property are only immune from jurisdiction relating to their “public acts” (acta jure imperii) but not in cases of jurisdiction for their “private acts” (acta jure gestionis), among them commercial activities. In other words, the proponents of the restrictive state immunity theory hold that, if the state acts as a private actor and places itself at the same level as to the other contracting party, lawsuits may be lodged against it and enforcement measures may be taken against its property.^[14] 

The courts in different countries have varying interpretations on distinguishing criteria for public and private acts of states. The US Act of 1976 looks at the quality and the nature of the transaction and the state action rather than at its purpose, whereas the English Act of 1978 determines the commercial character of a state act by its qualities and the types of contracts. These laws do not have retroactive effect.^[15]  

There is an essential need to converge these divergent legal approaches of state immunity being exercised in different countries, to unify legislative forms, as well as adopt a unified codification of international legal norms. The absence of a codification for treaty forms aiming at establishing unified norms with regard to states' immunities, their organs and their property have negative and adverse impacts on the stability of trade and economic relations. The International Law Commission spent over a decade working on a codification of the rules of international legal regime of jurisdictional immunities of states. The Commission prepared a draft in 1991^[16] and the 59^th  General Assembly of the United Nations adopted the Convention on Jurisdictional Immunities of States and Their Property in 2004.^[17] The Convention will take effect upon approval, ratification or accession by 30 states. As of today, only 28 states have signed it. 

Under the UN Convention on Jurisdictional Immunities of States and Their Property, a state may not claim immunity from the jurisdiction of another state provided the transaction is of a commercial nature and is a matter applicable under rules of private international law (Article 10 of the Convention).

Also the European Convention on State Immunity of 1972 signed by 46 countries regulates special conditions where state immunity may be waived. As specified in this Convention, some situations do exist in which a state is not permitted to refer to its immunity, in particular, cases when a state has undertaken to pursue a claim to the jurisdiction of foreign country court, when a state waived its immunity and/or when the dispute matter concerns labor agreement or immovable property.

Given the fact that the "united" international agreement on state immunity is not entered into force for the time being, the court decisions and legislative frameworks both on national and international levels play an important role on the definition of state immunity. The following case aims to illustrate the use of the restrictive state immunity principle. Decision by the Land High Court of Frankfurt (Germany) in the case of “X v. Spanish Government Tourist Bureau” (30 June, 1977).

The facts are as follows: The respondent was the Spanish Tourist Bureau of the Spanish Government. The dispute arose out of the Plaintiffs’ claim for damage allegedly inflicted by unauthorized distribution of a movie protected by copyright. The court satisfied the claim. The court’s reasoning was based on the following principles:

 

• If the activities of a foreign State conducted within the boundaries of the German State are subject of private law regulation, the foreign State shall fall under the jurisdiction of German courts. The immunity of such a State will maintain only in the cases where its acts involved are linked with its sovereign rights.
• Even if the Spanish Government Tourist Bureau is organized as a state official agency, the nature of its activities falls within the framework of private law.
• The unauthorized use of a copyright protected movie by the Spanish Tourist Bureau shall not be tolerated. The motive, be it direct or indirect, behind the act of the Spanish State of showing the movie was “profit seeking”.

 

In this case, the court specified that Respondent may not claim immunity rights from German jurisdiction although no agreement on jurisdictional immunity issues was concluded between Germany and the Respondent Spain. Thus the German court made a clear distinction between the state's activities and based on that the decision whether the disputed matter shall fall under the jurisdiction of its court was made.   The case drew attention of many researchers to the use of restrictive state immunity concept and influenced many foreign court decisions afterwards. The fact that respondent used many recordings without the permission of the owner did violate norms of private law. Although the Respondent state argued that the matter in dispute was of an intellectual property nature, the court stated that independent of the fact that the state owned tourist bureau used movies and recordings in international exhibition, the act shall be deemed as a private law matter since the acts of the agency were made out of private and profit interests.^[18]

The restriction of state's immunity is still an ongoing debate among researchers. The question on how to define the acts of a state as public in contrast to private has been criticized and in practice it is not easy. Some researchers suggested to support the so-called “differentiation theory” which divided state activities as “jure imperii” and ”jure gestionis”. Public and private acts of the state can be classified through its the nature, relations and the use of its national legal criteria.^[19]

Decision by the District Court of Tokyo in Limbin Hteik Tin Lat v. Union of Burma (9 June, 1954).

Plaintiff submitted a request to the Tokyo district court asking to determine the land status. The dispute arose from the case where lands owned by private individual on one side and by state (the General Council representative of Burma in Tokyo) on the other side. Court’s had to define the jurisdiction of the dispute. In its decision the Court stated that since Burma has gained its independence, it should be treated as a sovereign state.  So any public activity of such states is not a subject to be ruled or interfered by another state provided that the state voluntarily agrees to waive its immunity - this is a recognized principle of international law. However, as it is common that issues concerning immovable properties are decided in courts where that property is located, the Tokyo district court decided that this land case does indeed fall under the jurisdiction of Japanese court.^[20]

 

   III. Types of state immunities and its property rights

 

From the private international law perspective, following immunity types of state and its property commonly practiced in foreign counties shall be studied hereinafter:

1) Immunity from pre-judgment enforcement measures of a claim.

2) Immunity from court (immunity from court judgments of another country).

3) Immunity from enforcing court judgments.

4) Immunity of state property.

 

1) The immunity from pre-judgment enforcement of a claim means the prohibition of enforcing a claim lodged against one country without securing its consent. The case of “Rossia” ship of the Soviet Union^[21] provides a vivid example of this immunity type. The background context of the case is as follows: On March 18, 1948 the US court sealed the “Rossia” ship of Soviet Union upon its arrival to a harbor in New York. The argument for the measure was explained to be relevant and necessary given the injury of two passengers while the ship was sailing in ocean. As a consequence, the ship was pledged with the goal to enforce the claim. The Embassy of the Soviet Union had opposed to this action and informed that a ship of another state is a subject to immunity from court and therefore may not be pledged. Subsequently, the United State of American Federal Court issued a judgment on April 6, 1948, and decided to terminate the sealing of the ship.

Moreover, the case of a claim against the Government of Bolivia, decided by the Supreme Court of Chili on December 10, 1969^[22] (Decision by the Supreme Court “X x. The Government of Bolivia) can be referred to the above-mentioned arguments as well.   

   No state is obliged to accept the pre-judgment enforcement of a claim with regard to its property located in the territory of the latter state. This measure is eligible only when the foreign country directly expresses its consent.^[23]

Article 18 of the United Nation’s Convention on Jurisdictional immunities of states and their property states “No pre-judgment measures of constraint, such as attachment or arrest, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding”.^[24]

2) State Immunity from Court means that the state shall not be subpoenaed by the court of a different country as a respondent or third party without its consent. The following lawsuits are applied as case studies of this particular state immunity type.   

 

Judgment of Commercial Court of London, UK (March 11, 2004)

The court case involving Mongolia as defendant was a legal dispute over a performance guarantee provided by the Government of Mongolia to the Loan Agreement signed between Marubeni Corporation of Japan and Buyant Holding Ltd. of Mongolia (“Marubeni Hong Kong and South China Ltd. v Mongolian Government”, Court of Appeal-Commercial Court, March 12, 2004, [2004] EWHC 472 (Comm)).^[25]

The brief background of the case is as follows: On 29 March 1996, the Marubeni Corporation of Japan entered into a Deferred Payment Sales Contract (the "DPS1 Contract") with a Mongolian Buyan Holding Company Limited. Marubeni Corporation delivered equipment worth US$18,811,670 to Buyan Holding Company Limited and as agreed by both parties the first installment equivalent to five percent of the total price had to be paid within 60 days upon signing the contract, while the remaining payment could be made after 18 months from the first installment starting in June 24, 1998.

With respect to this contract, a guarantee regarding the performance obligation was issued by the Government of Mongolia acting through its Ministry of Finance, dated 11th May 1996, and its Ministry of Justice provided a legal opinion on the guarantee matter. 

Due to the failed performance of its obligation by Buyan Holding Company Limited, Marubeni Corporation approached the Government of Mongolia in August 2000 and demanded the indemnification pursuant to the guarantee provided. The Mongolian Government declined the request arguing that the guarantee cannot be deemed as a valid and authorized document. Consequently, Marubeni Corporation lodged a claim against the Mongolian Government to the Royal Courts of Justice, Commercial Court, Queen’s Bench Division of High Court of Justice of England on August 17, 2001. Even though, the Mongolian Government declared its position that “it will not acknowledge the jurisdiction of the court of England”, the hearing deciding on the case jurisdiction took place in July 22-23, 2002 and a judgment was issued in the name of “the jurisdiction and governing laws of England”.

The hearing of Commercial Court of London took place in February 2-17, 2004 and the final judgment was issued on March 11, 2004. The Court held that the Government of Mongolia did indeed issue a loan performance guarantee. However, the Government of Mongolia was discharged from its obligations under the guarantee due to the failure of Marubeni Corporation and Buyan Holding Company to notify the Government of Mongolia of their amendments made in the agreement. The decision was bolstered by the application of the rule in Holmes v Brunskill, 1877 case, which protects the rights of Guarantor with the following argument: “in case there is any material variation in the key agreement made by the parties without informing the Guarantor and in case such material variation may cause damage to the interest of the Guarantor, defendant's obligations under the guarantee shall be entirely discharged". 

Judgment of Supreme Court of Sweden “X. vs. People’s Republic of China” (Decision by the Supreme Court “Beckman v. Chinese People’s Republic”) (May 1, 1957)^[26]

The case claimants Karin Beckman and Aik Beckman, which are children and successors of Bengta Johansson, had lodged a claim against People’s Republic of China before the Court of Stockholm. On October 4, 1954, their father without having the consent of its children sold some real estates located in Stockholm to People’s Republic of China. When the Ministry of Foreign Affairs of Sweden approached the Embassy of People’s Republic of China regarding this matter, the Embassy informed that their action was interfering the diplomatic immunity. The Court of Stockholm declined to decide the claim lodged against People’s Republic of China. The Court stated, “the dispute of the claim concerns a property purchased by the People’s Republic of China and is being utilized for the purpose of Embassy. The People’s Republic of China exercises the right of immunity. For these reasons the Court objects to hear the case”.

The Appeal court reviewed the case by the appealed complaint and the decision by the City court was affirmed. Finally, the position of the Supreme Court remained the same as previous courts' decisions and the resolution was once again reaffirmed.^[27]

Also, following cases can be cited with respect to this immunity type:

• the Decision of December 28, 1928 by the Japanese Supreme Court in the case of “Matsuyama et al. V. Republic of China”.^[28]
• the Decision of April 26, 1968 by Australian Supreme Court in the case of “Grundfeld and Another v. United States of America and Others”^[29]
• Decision of September 3, 1969 by the Supreme Court of the Chile in the case of “X v. The Government of China”.^[30]
• Decision of June 2, 1975 by the Supreme Court of the Chile in the case of “X v. The Government of Cuba”.^[31]

3) Immunity from enforcing court judgments means the prohibition of any constraint measures of constraint pursuant to Court decision against any government (state) without the consent of the state. Such measures of constraint include, but not limited to the arrest against the state properties and the enforcement of certain actions.  A Russian scholar Boguslavskyi noted, “the immunity from enforcing the court decision implies that states are not allowed to review the case of another state within its jurisdiction without the consent of the latter state and take any measures in relation with its constraint enforcement of the court decision”.^[32]

The same idea is stated in the provisions of the UN Convention on Jurisdictional Immunities of States and Their Property and in Vienna Convention on Diplomatic Relation.

According to the Article 31 of the Vienna Convention on Diplomatic Relation “a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction" and unless otherwise stated in this Convention “no measures of execution may be taken in respect of a diplomatic agent” and “the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State”.^[33]

4) Immunity of state property is a main concept of the state property. A Russian scholar, Boguslavskyi points out that “state property is exclusive. It means no confiscation, arrest, usage and other pre-judgment measures of constraint against state property is allowed without the consent of the owner. Any forced detention of the state property in another state is prohibited. States, their organizations and individuals may not misappropriate the other State’s properties”.^[34] With regard to the state property located abroad, a state, which holds that property within its territory is banned to take any arbitrary measures against that property.

Although state properties are secured under the application of the international legal framework concerning state immunity and are privileged with certain immunity rights, they shall be regarded as an international law object rather than its subject.^[35]

As an example for this matter, the following case can be cited: decision of September 30, 1927 by the Provisional Court of Shanghai (Civil Division) in the case of “Pizaeff frиres v. The Soviet Marcantile Fleet Decision”.^[36]

 

 

   IV. Conclusion

 

The doctrine of restrictive state immunity definitely allows a reconciliation of interests between both the sovereign state and its foreign partners as it can better reflect the reality of contemporary trends in the international commercial relations. By contrast, the absolute immunity doctrine may no longer be legitimate and applicable enough to maintain the stability of international commerce where the role of a state as an equal partner is increasing and hence fails to respond to the shifting needs and challenges of the market while at the same creating obstacles to its development. Therefore, Mongolia should facilitate the concept of restrictive state immunity at the root of its legislation and take immediate actions on creating legal frameworks concerning state immunity. In the light of the growing international commercial agreements and the related objective needs, Mongolia faces a pressure to accede to the UN Convention on Jurisdictional Immunities of States and Their Property. The doctrine of restrictive immunity involves positive impacts on the matter and hence can have a value-added contribution to the protection of the interests of individuals and legal persons involved in commercial and economic dealings with foreign countries, expeditious resolution of commercial disputes, mutually beneficial commercial and economic affairs, and the stability of international commercial relations as a whole.

It appears that for the states acting as subjects of the Private International Law relation, the types of state immunity and its property rights cannot be used unless the state expresses its consent in any form.

As for Mongolia, this issue is a totally new concept, which requires more attention and a thorough research both on the political and legal levels.

Therefore, it is imperative to study experiences of foreign country in a broad manner and encourage exchange of views with foreign researchers. With this article I aim to receive proposals and criticisms from international colleagues and will be delighted to consider a potential cooperation on that matter.

 

  【REFERENCES】

Treaties and laws:

1. The Constitution of Mongolia. 1992.
2. Vienna Convention on Diplomatic Relation. 1961.
3. Charter of the United Nations. 1945.
4. United Nations Convention on Jurisdictional Immunities of States and Their Property. 2004.
5. European Convention on Immunities of States. 1972.

 

     Cases

1. Jackson v. Peoples Republic of China (1986) 
2. Decision by the Land High Court Frankfurt “X v. Spanish Government Tourist Bureau” Jun 30, 1977.
3. Decision by the District Court of Tokyo “Limbin Hteik Tin Lat v. Union of Burma” Jun 9, 1954.
4. Decision by the Supreme Court “X x. The Government of Bolivia.”
5. “Marubeni Hong Kong and South China Ltd. v Mongolian Government”, Court of Appeal-Commercial Court, March 12, 2004, [2004] EWHC 472 (Comm).
6. Decision by the Supreme Court “Beckman v. Chinese Peoples Republic” May 1, 1957.
7. Decision by the Supreme Court “Matsuyama et al. V. Republic of China”. Dec 28, 1928.
8. “Grundfeld and Another v. United States of America and Others” Apr 26, 1968.  Decision by the Supreme Court “X v. The Government of China”. Sep 3, 1969.
9. Decision by the Supreme Court “X v. The Government of Cuba” Jun 2, 1975.
10. Pizaeff frures v. The Soviet Marcantile Fleet. Decision by the Provisional Court of Shanghai (Civil Division) Sep 9, 1927.

 

Articles

1. Cosm Aruna. Immunity of state, its organs and its property in international private relations. Abstract. PhD dis in law, Kiev. 1991.
2. Shaihutdinova G.R. State immunity. Abstract. PhD dis in law. Kazani.1991.
3. Ivanov S.I. International legal aspects of immunity of state and its property. Abstract. PhD dis in law. M.1983.
4. Lebedev S.N. Immunity of state from foreign jurisdiction in capitalist contemporary states. Soviet yearly journal of international law. M. 1961.

 

Books

1. Boguslavskyi M.M. Private International Law. Study book. 5-th edition. (translation) Ulaanbaatar. 2008.
2. The laws of the Republic of Mongolia. Ulaanbaatar. 1980.
3. Lundendorj N. Theory of State, 2-nd edition, Ulaanbaatar. 2005.
4. Lundendorj N. Theory of State, third edition, Ulaanbaatar. 2008.
5. Mendsaikhan T. Private International Law, Ulaanbaatar. 2008.
6. Chimed B. Concept of the Constitutional Law: common issues. 1st book. Ulaanbaatar. 2004.
7. Boguslavskyi M.M. Immunirty of of foreign state and its property. Issues of international private law. M.1956.
8. Boguslavskyi M.M. International  private law.  Text book. M.2000.
9. Braginkyi M.I. Participation of Soviet State in civil law relations. M.1981.
10. Zvekow W.P. International private law. Lectures. M.1999.
11. Ushakov. N.A. State in system of internatiuonal legal regulation. M. 1997.
12. Ushakov N.A. Jurisdictional immunities of state and its property. M.1993.
13. Anufrieva L.P. Interrelational of international public and international private law. Legal crtiterias. M.2002.
14. Materials on jurisdictional immunities of states and their property. New York. United Nations.1982.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   【ABSTRACT】

 

         THE SHIFTING PERSPECTIVE OF THE STATE IMMUNITY DOCTRINE

 

In 1992, Mongolia endured a substantial transition from its centralized planned economy, class-oriented social structure and one-party rule political ideological system towards a regime respecting democracy, human rights and freedoms, recognizing all forms of private and public property along with more open policy on competitive market economy relations.^[37] This shift of regime was branded as the beginning or sometimes as middle and transitional periods, during which the state facilitates reformation and renovation policies in all areas of its system.  The Constitution of Mongolia states that the State shall recognize all forms of public and private property and is obliged to protect property rights by means of law.^[38] The land, its subsoil, forests, water, fauna and flora and other natural resources in Mongolia shall belong exclusively to the people and be under the State protection. The land, except those given to the citizen of Mongolia for private possession, as well as the subsoil with its mineral wealth, forest, water resources and game shall be the property of the State.^[39]

According to the private international law doctrine, states can participate in private international law relations both as sovereign subjects representing public interests (jure imperii) as well as private subjects being economic stakeholders (jure gestionis). The first-mentioned role is established between international law subjects such as states, nations and international organizations and hence is regulated by public international law (jus publicum), while the latter one belongs to private international law, in which the state is involved in relations with international business entities, foreign legal entities and private individuals (jus privatum)^[40]

Therefore a state can exercise its power not only by entering into relations with other states, but also with private individuals and legal persons and this way becomes a subject of civil procedure. Arising disputes between subjects of international law are resolved in compliance with the Article 33 of UN Charter^[41] by the International Court of Justice. Also, competent national courts or international arbitrations can review such legal controversies.

The legal status of state in private international law differs considerably from the status of citizens and legal persons. Among the number of factors, the special status is given to states due to their role as highest authority and supreme power.^[42]

In cases where a State involves in property related private international law relations its role determined by several subjective and objective reasons becomes quite unique.

In private international law, states' role as independent sovereign subjects "diminishes" as these relations shall be based on the principle of equal rights.

In our opinion, if Mongolian state participates in following matters, these relations shall be regulated under private international law and not vice versa:

• Loan relations (Mongolia as a lender can conclude loan agreements with credit institutions, foreign state and international financial organizations).
• Issuance of securities and bonds on behalf of Mongolia.
• Issuance of loan guarantee (Mongolia can conclude agreements by means of government guarantee, which is regulated under the State budget law).
• Purchase and lease of lands abroad.
• Sales and rent of its own land, building facilities located abroad.
• Conclusion of concession agreements with foreign investors
• Contracts on product share, agreements on priority issues including investments in oil sectors.
• Service agreements for public purposes.
• Sale and purchase agreements of goods and services.
• Inherit rights for properties of Mongolian citizens deceased abroad.

 

The states' participation in international relations can be divided into following types:

 

1. Interstate relations as well as state and international organizations relations on (economic, scientific-technical cooperation, loan agreements). This relation is settled under public international law.
2. Relations between a state on one side and foreign legal entities, international non-governmental or economic organizations and individuals on the other. This type of private international law relations shall be examined in this research.

 

One of the main concerns of any state dealing with private international law relations is the determination of which jurisdictional immunity theory or concept it shall pursue and implement. 

With the systematic change of Mongolian economy, the country’s foreign trade relations have broadened and the range as well as number of foreign direct investments and international economic negotiations has increased. Recently a number of legal disputes in foreign court and arbitral proceedings have taken place, where Mongolia participated as a private law subject and some cases are pending decisions.

 

     However it is more than obvious that we still lack required knowledge and know-how when making deals of this kind. Thus there is a crucial need to conduct researches on the immunity of the state and its property, findings of which will be practically important for Mongolia when entering into the private international law relations. The researches in this field will support Mongolia in understanding which role it shall take, what kind of policy it has to implement, in assessing hidden risks and establishing the right legal framework. This paper examines doctrines on state immunity and its types that shall be observed by a state for private international law relations and by looking at the international practices both in terms of legal policy and real court cases it aims to find the most suitable scenario for Mongolia.

 

        【초록】

 

         국가의 법적 신분의 면제 원칙의 변화의 관점

 

 

국가와 그 재산의 관할권 면제의 유형과 원칙

 

  1992년에 몽골은 개방과 자유 경쟁시장 관계와 함께 민간 및 공공 재산의 모든 형태를 인정하면서 중앙 계획 경제, 계급 중심의 사회구조, 하나의 정당이 집권하는 정치체제로부터 인권과 자유를 존중하는 민주주의로 체제전환을 하였다. 이러한 체제 전환은 국가가 그 시스템의 모든 여역에서 개혁과 혁신 정책을 촉진하는 시작, 과정, 전환 기간으로 불린다. 몽골의 헌법은 국가가 공공 및 사유 재산의 모든 형태를 인정하고 법에 의해 재산권은 보호 할 의무가 있다고 서술하였다. 몽골의 토지, 지하 자원, 산림, 물, 동식물 등 천연 자원은 사람들에게 소유되어야 하고 국가의 보호 아래 있어야 한다. 사적 소유로 몽골 국민들에게 주어진 토지 이외의 토지뿐만 아니라 지하 자원, 산림, 수자원 및 게임은 국가의 재산으로한다.

 

  국제 사법 원칙에 따르면, 국가는 경제적 이해 당사자로서 공공의 이익과 개인의 이익 모두를 대변하는 주권 주체로 국제 사법 관계에 참여할 수 있다. 전자의 경우 국가의 역할은 국가와 국제기구로 국제 법률 주체들 간에 설정되어 국제 공법에 의해 조절된다는 것을 의미하는 반면 후자는 국가는 사업 개체, 외국 법인 및 개인과의 관계에 참여하는 국제 사법과 관련됨을 의미한다.

  따라서 국가는 다른 국가들과의 관계뿐만 아니라 개인들과 법적인 효력이 있는 사람들 간의 관계에서 권력을 행사할 수 있고 이러한 방법은 민사 절차의 대상이된다. 국제법의 주체들 사이에 발생하는 분쟁은 국제 사법 재판소에 의해 유엔 헌장의 제 33 조를 근거로 해결된다. 또한, 권한 있는 국내 법원 또는 국제 중재는 법적 논쟁을 검토 할 수 있다.

 

  국제 사법에서 국가의 법적 지위는 시민 및 법인의 지위에서 상당히 다르다. 그들의 권위와 최고 권력 때문에 특별한 지위 및 신분이 제공된다.

 

  국가는 재산 관련 국제 사법 관계에 관련된 경우에 그 역할이 여러 주관적 및 객관적 이유에 의해 매우 독특해진다.

국제 사법에 의하면, 이러한 관계는 동등한 권리의 원칙에 근거해야 하므로 독립적인 주체로서 국가의 역할은 감소된다.

 

 우리의 의견으로 몽골이 국가 권한으로 다음과 같은 문제에 참여한다면 이러한 관계는 국제 사법에 의거해야 한다:

● 대출 관계 (몽골은 채권자로서 신용 기관, 외국 국가와 국제 금융 기관과 대출 계약을 체결 할 수 있다).

● 몽골 대신 증권과 채권의 발행.

● 대출 보증의 발급(몽골은 국가 예산 법에 따라 정부 보증의 방법으로 계약을 체결 할 수 있다).

● 구입 및 해외 토지의 임대.

● 자신의 토지의 판매 및 임대, 해외에서의 건물 및 시설의 건축

● 외국인 투자자와 양보 계약 체결

● 제품 공유 계약, 석유 부문에 대한 투자에 관련 우선 순위 합의.

● 공공 목적을 위한 서비스 계약.

● 상품과 서비스의 판매 및 구매 계약.

● 해외에서 사망한 몽골인의 재산 상속 권한

 

국제 관계에서의 국가의 참여는 다음과 같은 유형으로 나누어진다.

 

1. 국가 간 관계뿐만 아니라 국가와 국제 기구의 관계 (경제, 과학-기술 협력, 대출 계약). 이 관계는 공공 국제법에 의거한다.

2. 국가와 다른 외국 법인, 국제 비정부 또는 경제 조직과 개인 간의 관계. 본 연구에서는 이러한 유형의 국제 사법 관계를 검토하고자 한다.

 

국제 사법 관계를 다루는 모든 국가의 주요 관심사 중 하나는 추구되고 실행되어야 하는 관할권 면제 이론 또는 개념을 결정하는 것이다.

따라서 본 연구는 국제 사법 관계에서의 국가의 참여, 국가의 관할권 면제의 원칙과 유형에 대한 문제를 커버하는 것을 목표로 한다.

 

 

     Key words 

 

State, state property, absolute theory of state jurisdictional immunity and its property, restrictive theory of  jurisdictional immunity  of state and its property, types of immunity.