IMUNITA ŠTÁTU V MEDZINÁRODNEJ ARBITRÁŽNEJ A OBCHODNEJ PRAXI. I. ČASŤ. HISTORICKÝ VÝVOJ, ZMLUVNÉ VZDANIE SA IMUNITY
State immunity in the international arbitration and commercial practice. Part I.: Historical development, waiver of immunity
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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.
372 – 390
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