Oyumaa V. Professor of School of Law, National University of Mongolia

  Abstract

Key words:

I. Introduction

II. The doctrine of jurisdictional immunity of state and its property

1. Absolute theory  of jurisdictional immunity  of state and its  property
2. Restrictive theory of jurisdictional immunity  of state and its  property

III. Types of jurisdictional immunity of state and its property

1. Immunity from pre-judgment enforcement of a claim
2. Court’s immunity (immunity from jurisdiction  of foreign courts)
3. Immunity from enforcing court judgments
4. Immunity of state property

IV. Conclusion

Bibliography

Abstract

Since 1992, Mongolia started to establish a regime  respecting democracy, human rights and freedoms, recognizing all forms of private and  public property, competitive market economy relations,  which substantially changed  previous centralized planned economy,  class based society structure,  political and ideological regime with  domination of one party rule^[2].  As transfer from one regime to another regime continued, this transfer was divided into beginning, middle and transitional periods, during which state made  reformation, renovation  in all  spheres of its life.  The Constitution of Mongolia states that State shall recognize all forms of public and private property and protect property rights by law^[3].  Land, its soil, forest, water, animals, plants and other natural resources shall be under power of peoples and state protection in Mongolia.  All lands, except lands owned by citizens of Mongolia, its soil, natural resources, forest and water resources, animals shall be state property^[4].

In accordance with international private law doctrine, state can participate in international private law relations as sovereign subject representing public interest (jure imperii) and economic subject representing private interests (jure gestionis).  First relation is established between international law subjects as states, nations and international organizations, thus regulated by international public law norms (jus publicum). The second one can be relations between state from one side and economic entity from the other side or relations between foreign legal persons and private individuals (jus privatum)^[5] which is regulated by private international law.

Hence state exercises it power not only entering into relations with other states but also with private individuals and legal persons, thus becomes subject of civil circulation. Disputes between international law subjects are resolved in compliance with article 33 of UN Charter^[6] by UN”s International Court of Justice. Disputes arising from legal relations between these subjects can be reviewed also by competent national courts or international arbitrations.

            Legal status of state in international private law relations is different from status of citizens and legal persons.  The specific status of state is conditioned by state’s specific role and its representation of state’s high power^[7].

            When a State participates in property related international private law relations it has a very special role. This role is determined by several subjective and objective reasons. For instance state’s role is defined by its population, political system and economic situation.

Although in relations of international law, states as sovereign subjects of international law shall have equal rights.

            In our opinion if Mongolian state participates as one party in following relations it shall be regulated not by international public law, but  by international private law:

• Loan relations (Mongolia as lender can conclude loan agreements with credit institutions, foreign state and international financial organizations)
• Loan money by issuing  securities on behalf of Mongolia
• Loan and issue loan guarantee (Mongolia can conclude agreement on state guarantee. State guarantee is regulated by state budget law).
• Acquiring and leasing  land abroad
• Selling and renting own land, building facilities  located abroad
• Conclude concession agreement with foreign investors
• Conclude agreements on product share, agreement on priority investment rights to oil exploitation and production plants
• Service agreements for state purposes
• Conclude agreements on sale and purchase of goods and services
• Inherit properties of Mongolian citizens deceased abroad.

The participation of state in international relations can be divided into types:

1. Inter-state relations as well as state and international organizations relations on (economic, scientific-technical cooperation, loan agreements). This relation is regulated by international public law norms
2. From one side state and from the other state foreign legal person, international non-governmental or economic organization, individual. The subject of this research is this type of relations.

One of the main points for any state which participates in international private relations is to determine which jurisdictional immunity theory or concept shall guide it, as well as to use correctly forms and types of immunity.  Thus this research shall cover issues on participation of state in international private relations, the doctrines, concepts and types of state jurisdictional immunity.

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.

1. Introduction

International private law is comparatively new subject of legal research and study in Mongolia and this is reasoned by fact that Mongolia was country with socialist system for many years. It was important for me to decide on which topic should my research concentrate       in this continuing development of international private law in Mongolia.

Nowadays when Mongolia exercises open foreign policy and more and more participates in international economic integration, demand for state and its affiliated organizations to enter into relations with foreign legal persons and individuals is continuously increasing. From the other side Mongolia is very attractive for foreign investors by its rare natural resources. Although in recent history, Mongolia did not have so much experience on concluding major project international private law agreements and the major project on use of “Erdenet” coal was regulated by international public law. These objective reasons has influenced me to make research on “State as subject of international private law and legal status of its property”.  The lack of independent and individual research on participation of state in international private relations, especially issues on state’s jurisdictional and its property’s immunity   required very broad and detailed research.  This paper introduces some outcomes from my research.

2. Doctrine of jurisdictional immunity  of state and its  property

The doctrine of jurisdictional immunities of states and their property is one of the most hotly debated issues. This state of affairs stems from the substantive differences between various theories of state immunity as well as from the divergent legal treatment of the issue across countries. Scholars also differ substantially in their views.^[8]

A Russian scholar, M. M. Boguslavskyi, points out that “legal theory accommodates two main approaches to state immunity, one absolute and the other restrictive.”^[9] In his work, Dr. T.Mendsaikhan stated that “all countries recognized the theory of absolute state immunity from 19^th and 20^th  century, which were afterwards followed by theories of functional or restrictive state immunity.”^[10]

   A. 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 any foreign country without its own consent. The doctrine underpinned the legislation of a vast majority of countries in the socialist block. For instance, article 65 of the Civil Code of the PRC set forth the principle of immunity of state property by providing that “State-owned enterprises, buildings, structures, equipment, and other core assets of state bodies shall not be used as collateral and for payment of creditors’ claims.”^[11] The doctrine was supported by many scholars of the socialist times as the only correct one.^[12]

But, in recent years, the popularity of this doctrine has undergone some changes and a growing majority of scholars is now shifting to the restrictive theory of state immunity.^[13] As well, the legislation of countries in the tradition of absolute state immunity recently began to change and their courts decided quite a few cases which might be viewed as interesting precedents. For example, in the case of Jackson v. People’s Republic of China (1986), the key facts related to law suits initiated by the holders of bonds issued by the Chinese government in 1911. In response to these claims, the government of China refused to assume any responsibility for the actions of previous governments and demanded that the doctrine of absolute state immunity be applied. Although the court applied article 1603(b) of the US Foreign State Immunity Act of 1976 and found that the state action in question was of a commercial nature, it recognized the absolute immunity of state because the law could not have retrospective effect. At the time of adjudicating this case, China was not a follower of the theory of restrictive immunity and the decision actually stated that this theory should apply to countries where it is recognized but not to China, which adhered to the theory of absolute immunity.

B.  The theory of restrictive state immunity

The main idea of the theory of restrictive state immunity is that any legal action against a foreign state may not be subjected without its consent to the jurisdiction of another state. The theory also says that to enforce a claim any state may not forcefully take the property of another without securing the consent of the latter. This doctrine entrenched in the majority of capitalist nations and, as the role of the state increased in relations under international private law, that is, in the 70s and 80s of the 20^th century,^[14] these countries began to adopt laws limiting state immunity. Even at the beginning of the 20^th century, the courts in some countries denied absolute immunity when the state was involved in commercial activity. Belgium and Italy, which started to limit state immunity in 1882, should be specifically mentioned as examples of such countries.^[15]

In civil law countries, the shift from absolute immunity to restrictive immunity was difficult and the doctrine of restrictive immunity came to operate only through legislative action.^[16]

The doctrine of restrictive state immunity has now spread in many countries such as 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 fact that the state became increasingly engaged in economic activity. The state’s involvement increased in commercial activities which were closely related to international trade and financial markets. The state was making agreements that grew not only in number but also in variety. The state frequently asked foreign banks and international financial organizations for credits. The question of state immunity became an important one for states that are pursuing policies to attract FDI in modern economic relations. In case of disputes between investors and their host, it is desirable for investors to have the capital importing country waive its immunity.”^[17] 

According to another Russian scholar I. O. Khlestov, “The scope of application of treaty provisions and norms of international is widening so as to limit immunity of foreign states. This trend is witnessed by legislative and judicial practice of countries which have adopted the theory of restrictive state immunity. At the same time, ordinary norms of international law concerning state immunity is becoming less common in application. It is getting popular among the adherents of absolute immunity to waive their immunity in certain types of cases.”^[18] The doctrine is based on such international legal instruments as the European Convention on State Immunity 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 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 were only immune from jurisdiction relating to their “public acts” (acta jure imperii) but were not immune from jurisdiction for their “private acts” (acta jure gestionis) including commercial activities. In other words, the proponents of the theory of restrictive state immunity hold that, if the state places itself at the same level as a private actor, lawsuits may be lodged against it and enforcement measures may be taken against its property.^[19] 

The courts in different countries interpret differently the criteria for distinguishing between public and private acts by states. The US Act of 1976 looks at not the purpose of a given act of state but its qualities and the nature of the transaction involved. The English Act of 1978 determines the commercial character of an act of state by using the qualities of such an act and the types of contracts. These laws do not have retroactive effect.^[20] 

There is a need for convergence between the divergent legal approaches to state immunity found in different countries, unification of legislative forms in this area, and adoption of codification of international legal norms. The lack of a unified codification of treaty forms establishing norms of immunities of states and their property and organs has negatively affected the stability of trade and economic relations. The United States Commission on International Law spent not one but a decade working on a codification of the rules of international law regarding jurisdictional immunities of states and their property. The Commission prepared a draft in 1991^[21] and the 59th General Assembly of the United States adopted the Convention on Jurisdictional Immunities of States and Their Property in 2004.^[22] This Convention will take effect upon approval, ratification or accession by 30 states. As of today, 28 states have done so. 

Under the UN Convention on Jurisdictional Immunities of States and Their Property, a state may not claim immunity from the jurisdiction of another state:

• If a State engages in a commercial transaction with a foreign natural or juridical person and, by virtue of the applicable rules of private international law, differences relating to the commercial transaction fall within the jurisdiction of a court of another State (article 10);

• Where a State enterprise or other entity established by a State which has an independent legal personality and is capable of: (a) suing or being sued; and (b) acquiring, owning or possessing and disposing of property, including property which that State has authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State shall not be affected (article 10);
• with regard to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State (article 11)
• if the other state is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission (article 12);
• Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up (article 13);
• Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to: (a) the determination of any right of the State in a patent, industrial design, trade name or business name, trademark, copyright or any other form of intellectual or industrial property which enjoys a measure of legal protection, even if provisional, in the State of the forum; or (b) an alleged infringement by the State, in the territory of the State of the forum, of a right of the nature mentioned in subparagraph (a) which belongs to a third person and is protected in the State of the forum (article 14);
• A State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to its participation in a company or other collective body, whether incorporated or unincorporated, being a proceeding concerning the relationship between the State and the body or the other participants therein, provided that the body: (a) has participants other than States or international organizations; and (b) is incorporated or constituted under the law of the State of the forum or has its seat or principal place of business in that State (article 15);
• If a State enters into an agreement in writing with a foreign natural or juridical person to submit to arbitration differences relating to a commercial transaction, that State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to: (a) the validity, interpretation or application of the arbitration agreement; (b) the arbitration procedure; or (c) the confirmation or the setting aside of the award, unless the arbitration agreement otherwise provides (article 17)

Also European Convention of 1972 on “Immunity of state” signed by 46 countries has regulated situation on exemption of state immunity in special situations.  For  instance as specified in this Convention,  in several situations state can not refer to its immunity as if when state has undertaken to submit to the jurisdiction of foreign court,  when  has refused from its immunity and if the dispute is related to labor agreement or immovable property.

Thus because universal international  agreement on state immunity was not entered into force yet, the decisions of national courts and national legislation plays important role for defining issue of state immunity.

To illustrate the use of the restrictive principle of state immunity, let us look at one case.

Decision of 30 June 1977 by the Land High Court of Frankfurt (Germany) in the case of “X v. Spanish Government Tourist Bureau”

The facts are as follows: The Respondents were the Spanish Tourist Bureau (a dependent organization, which did not have the status of a legal entity) of the Spanish State[ELB1] . 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 a foreign State is engaged in activities within the boundaries of the German State as regulated by private law, such  foreign State will fall under the jurisdiction of German courts. The immunity of such a State will arise only in the case of its sovereign acts.
• Even if the Spanish Government Tourist Bureau had been organized as an official agency, the activities of the bureau are of a private law nature.
•  The unauthorized use of a copyright protected movie by the Spanish Tourist Bureau is not to be tolerated. The act of showing the movie was motivated indirectly by “profit seeking” on the part of the Spanish state.

 

In this case, court specified that Respondent shall not claim to have immunity rights from German jurisdiction.  There is not agreement was concluded between Germany and Respondent on jurisdictional immunity issues.  Thus the German court in this case clearly distinguished activities of state and based on that disputed issue fell under the jurisdiction of national court.   This decision of German Land high court withdraw attention of many researchers and influenced that more and more foreign courts used this restrictive immunity concept. The fact that respondent used many recordings without permission from owner violated private law norms. Even though that state subject used intellectual property, the issue of dispute is of private character. The court stated that although the state owned tourist bureau used movies and recordings in international exhibition the act shall be concerned was made from agency for private and profit interests.^[23]

            The issue of restrictive is still under dispute between researchers. It is always under criticism how to distinguish the public acts, activities from private and economic activities of state.  In practice distinction of these two branches is not so easy. Some researchers believe that it is advisable to recognize “differentiation theory” which divided state activities as “jure imperii” and ”jure gestionis”. Public acts and private acts can be differentiated from each other by studying the nature of state activity, relations and by using national legal criteria.^[24]

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

Plaintiff asked Tokyo district court to define the status of land. The dispute concerned the land located near land of General Council representative of Burma in Tokyo. In this case dispute was between private person and state.  Court’s task was to define the jurisdiction.  Court in its statement said that, Burma has gained its independence and should be treated as sovereign state.  So if state exercises public activity it can not be ruled by other state. This is recognized principle of international law.  Only if state voluntarily agrees to wave from its immunity, the foreign court have jurisdiction on public activities of state.  It is common that issues related to immovable properties shall be decided in courts where that property is located. Therefore court decided that this case shall be under jurisdiction of Japanese court.^[25]

III. Types of state immunities and their property

From the perspective of international private law, following types of state immunities and their property commonly practices in foreign counties shall be studied hereinafter:

1. Immunity from pre-judgment enforcement of a claim
2. Immunity from court (immunity from court judgments of other countries)
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 forcefully enforcing a claim lodged by one country without securing the consent of the respondent country. The case of “Rossia” ship of Soviet Union^[26] is regarded as a vivid example of this immunity and the context of the case is as follows. On March 18, 1948 a court of United States of America sealed the “Rossia” ship of Soviet Union upon its arrival to a harbor in New York. This measure was explained to be relevant to the claim regarding the injury of two passengers while the ship was sailing in ocean. The ship was pledged in order to enforce the claim. The Embassy of Soviet Union had opposed this action and informed that a ship of foreign state shall be subject to immunity from court and therefore cannot be pledged. Subsequently, the Federal Court of United States of America 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^[27] (Decision by the Supreme Court “X x. The Government of Bolivia) can be referred with the above mentioned as well.      

No state, even if it acknowledges the court of another state, accepts the pre-judgment enforcement of a claim with regards to its property, which is located in the latter state. This measure is only accessible when the foreign country directly expresses its consent.^[28]     

Article 18 of United Nations 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”^[29].   

 

2. State’s 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 cases are applied as objects of study in the research of this particular immunity of a state.     

 

Judgment of Commercial Court of London, United Kingdom of March 11, 2004.

The case of performance guarantee provided by the Government of Mongolia to Loan Agreement 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))^[30].

 

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 Buyan Holding Company Limited, a Mongolian company. According the contract Marubeni Corporation delivered equipment for the textile factory with price of US$18,811,670 to Buyan Holding Company Limited. Pursuant to arrangements of the parties, the first installment equal to five percent of the price was to be paid within 60 days of the signature of the contract, and the remaining amount was to be paid in 12 equal semi-annual installments after 18 months from the first installment starting in June 24, 1998, and an accrued interest was to be as agreed by the parties for the outstanding loan. Accrue

With respects to this contract, a guarantee regarding the obligation to payment and estimation of the contract was issued by the Minister of Finance of Mongolia, dated 11^th May 1996, and a legal opinion referring the guarantee was issued by the Minister of Justice of Mongolia.

Due to the failure of Buyan Holding Company Limited to perform its obligations under the agreement, Marubeni Corporation started approaching the Government of Mongolia August, 2000 and required the indemnification pursuant to the guarantee it provided. The Mongolian Government declined to pay the amount as it deemed the guarantee to be invalid and un-authorized document. Thus, on August 17, 2001 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. Even though, Mongolian Government responded to the claim by stating that “it would not acknowledge the jurisdiction of the court of England”, a hearing to decide on the jurisdiction of the case was held in July 22-23, 2002 and a judgment was issued for “the jurisdiction in England and governing laws of England”.

The hearing of Commercial Court of London, England took place in February 2-17, 2004 and a 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 failure of Marubeni Corporation and Buyan Holding Company to notify the Government of Mongolia of their amendments made in agreement, based on application of the rule in Holmes v Brunskill, 1877, which provides “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 of May 1, 1957. “X. vs. People’s Republic of China” (Decision by the Supreme Court “Beckman v. Chinese People’s Republic”) ^[31]

The claimants of this case Karin Beckman and Aik Beckman, children and successors of Bengta Johansson had lodged a claim against People’s Republic of China to a court of Stockholm. On October 4, 1954, their father without the children’s consent had 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 People’s Republic of China and is utilized for the purpose of Embassy and People’s Republic of China exercises the right of immunity. For this reason the court declines to hear the case”.      

The Appeal court reviewed the case by the appealed complaint and decided to affirm the decision by the City court.

The Supreme Court deemed in case of the property is being used for Embassy of People’s Republic of China, People’s Republic of China shall enjoy the immunity from the claim submitted by Karin and Aik Beckman and affirmed the resolution by the Appeal Court.^[32]

Also, following cases can be cited regarding this issue:  Decision of December 28, 1928 by Japanese Supreme Court in the case of “Matsuyama et al. V. Republic of China”^[33]., Decision of April 26, 1968 by Australian Supreme Court in the case of “Grundfeld and Another v. United States of America and Others”^[34]., Decision of September 3, 1969 by the Supreme Court of the Chile in the case of “X v. The Government of China”^[35]., Decision of June 2, 1975 by the Supreme Court of the Chile in the case of “X v. The Government of Cuba”^[36].   

C. Immunity from enforcing court judgments means it is not allowed to take any measures of constraint to enforce the Court decision against any government (state) without the consent of such government (state). Such measures of constraint can be as follows: arrest against the properties of the government, enforcing to take a certain action, et cetera.  A Russian scholar, Boguslavskyi M.M, points out that “immunity from enforcing the court decision refers states are not allowed to reviewing another state within its jurisdiction without the consent of such state and taking measures of constraint to enforce the court decision”.^[37]

It is also stated in UN Convention on Jurisdictional Immunities of States and Their Property and in Vienna Convention on Diplomatic Relation.

            According to 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”, “The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.”^[38]

D. Immunity of state property is general understanding of the state property. A Russian scholar, Boguslavskyi M.M, 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. Forced detention of the state property in another state is prohibited.   States, their organizations and individuals are not allowed to misappropriate the other State’s properties.” ^[39] Regarding the state property existing in abroad, a state which keeps that property in its territory prohibited to take any arbitrary measures against that property.

            Although state property is secured due to applying the international law rules regarding state immunity or is provided with certain immunity and privilege, it shall be considered as an international law object but not to be considered as an international law subject. ^[40]

            As for the example for this issue, 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”.^[41]

IV. Conclusion

1. The concept of restrictive immunity no doubt will make it easier to balance the interests of both the sovereign and its foreign partners because it better reflects the reality of contemporary trends in international commerce. By contrast, the doctrine of absolute immunity seems no longer capable of maintaining the stability of international commerce with state participation because it lags behind the reality, fails to respond to the needs of the market, and creates obstacles to international economic relations. Therefore, Mongolia should put the concept of restrictive state immunity at the root of its legislation and make a law on state immunity as soon as possible. Also, there is a pressing need for Mongolia to accede to the UN Convention on Jurisdictional Immunities of States and Their Property.  That Mongolia should adopt the doctrine of restrictive immunity stems from objective needs and the demands of market economy. The doctrine of restrictive immunity can contribute to the protection of the interests of individuals and legal persons involved in commercial and economic dealings with foreign countries, expeditious resolution of disputes between commercial partners, mutually beneficial commercial and economic affairs, and the stability of international commerce.

2. It appears that for the state which is subject of the Private International Law relation, types of the state immunity and its property rights cannot be used unless the state expresses its consent in any form.

This issue is a new concept which has not being researched in Mongolia. 

3. Therefore, it is significant to study the foreign country’s experiences widely and to exchange opinions with foreign researchers for this research work. I would like to say that I aimed to receive proposals and criticisms regarding this issue.  

 

Bibliography

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 Cnina (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.Chinise 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. Jurisdictional immunity of state. 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.