Academic literature on the topic 'Waiver of immunity from execution'
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Journal articles on the topic "Waiver of immunity from execution":
1
Pengelley, Nicholas. "Waiver of Sovereign Immunity from Execution: Arbitration is Not Enough." Journal of International Arbitration 26, Issue 6 (December 1, 2009): 859–72. http://dx.doi.org/10.54648/joia2009045.
Abstract:
A continuing controversy in international commercial arbitration concerns the right of a private party to an arbitration to execute an award against a recalcitrant state party, despite the advent of the doctrine of restricted immunity, which seemingly applies only to waiver of jurisdiction, not execution. The problematic issue is the extent to which, if at all, a state that has waived sovereign immunity from jurisdiction has also waived immunity from execution—in effect from enforcement of an arbitral award by attachment of its sovereign assets. In a sign that the old order may be changing, some courts have been willing to hold that consent by a state to arbitration implies waiver of immunity from execution as well as from jurisdiction. The issue was recently tackled by the Hong Kong Court of First Instance, in FG Hemisphere Associates L.L.C. v. Democratic Republic of Congo. Reyes, J. looked at what might constitute waiver of sovereign immunity, particularly with respect to immunity from execution in the context of enforcement of an arbitral award against a state, finding that participation in an arbitration, including agreement to arbitral rules requiring satisfaction of an award, was not sufficient to constitute waiver of immunity from execution in itself. Taking that decision as a useful starting place, this article discusses the issue of waiver of sovereign immunity from execution with respect to arbitral awards.
2
Glucksmann, Eloïse. "Commisimpex v. Republic of Congo." American Journal of International Law 111, no. 2 (April 2017): 453–60. http://dx.doi.org/10.1017/ajil.2017.30.
Abstract:
The law in France regarding waivers of foreign state (or sovereign) immunity from execution of judicial judgments (based largely on consideration of international law principles) has recently undergone significant developments. Previously, French case law had required a foreign state's waiver of immunity from execution to be both express and specific to consider valid the attachment of foreign state property allocated to public services (including bank accounts used for the functioning of both diplomatic missions and delegations to international organizations). In 2015, the French Court of Cassation relaxed the criteria it had previously required for giving effect to waivers of sovereign immunity in such situations, thus facilitating the ability of judgment creditors to attach foreign state property in France. Its decision in the Commisimpex v. Republic of Congo case appeared to put an end to that requirement by abandoning the criterion of a “specific” waiver on the ground that “customary international law does not require a waiver of immunity from execution other than express.” In December 2016, however, the French government enacted new legislation reinstating the need for a specific waiver of immunity for the attachment of the property as well as bank accounts of foreign embassies and diplomatic missions and additionally requiring a court order authorizing the attachment or seizure. As a result, France has now embraced a distinctly more protective approach to the immunity of foreign state assets from attachment and execution of judicial judgments.
3
JURATOWITCH, Ben. "Waiver of State Immunity and Enforcement of Arbitral Awards." Asian Journal of International Law 6, no. 2 (February 13, 2015): 199–232. http://dx.doi.org/10.1017/s204425131400040x.
Abstract:
If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.
4
Gélinas, Fabien, and Mees Brenninkmeijer. "Execution Immunities and the Effect of the Arbitration Agreement." Journal of International Arbitration 37, Issue 5 (September 1, 2020): 549–88. http://dx.doi.org/10.54648/joia2020027.
Abstract:
The prevailing view in international legal practice is that a state does not waive its immunity from execution by merely consenting to arbitration. Yet, in the context of arbitration between states and private parties, execution immunities have emerged as a very significant obstacle to the effective implementation of arbitral awards. When immunity from execution allows states to escape obligations they have freely undertaken, and when it withholds from claimants the fruits of a favourable award, the benefits of arbitration become illusory. This article contends that the prevailing view is no longer compelling because, in the context of arbitration, deference to state immunity is misplaced and imposes an unjustified limit on the rule of law. It is suggested that an agreement to arbitrate should ultimately have the presumptive effect of waiving immunity from execution. The proposed waiver may be viewed as following from the obligation that the sovereign voluntarily undertakes when submitting to arbitration, and tracks the normative evolution of the relation between the doctrine of sovereign immunity and arbitration law. State Immunity, Immunity from Execution, Implied Waiver, Arbitration Agreement, Subjective Arbitrability, Santiago Resolution, Rule of Law, International Public Policy.
5
Brenninkmeijer, Mees, and Fabien Gélinas. "The Problem of Execution Immunities and the ICSID Convention." Journal of World Investment & Trade 22, no. 3 (June 21, 2021): 429–58. http://dx.doi.org/10.1163/22119000-12340214.
Abstract:
Abstract The prevailing view in international practice is that, by consenting to arbitration, a State does not waive its immunity from execution. Yet, in the context of arbitration administered by the International Centre for Settlement of Investment Disputes (ICSID) – as in the context of arbitration between States and private parties more generally – the problem of execution immunities is a very significant obstacle to the effective implementation of arbitral awards. When immunity from execution allows States to escape obligations they have freely undertaken, and when it withholds from claimants the fruits of a favourable award, the benefits of arbitration become illusory. This article contends that the prevailing view is no longer compelling. We argue that domestic courts can and should uphold the rule-of-law objectives and benefits of the ICSID Convention by adjusting their approach to immunity claims in the arbitral context: consent to arbitration should be interpreted as an implied waiver of immunity from execution.
6
RYNGAERT, CEDRIC. "Embassy Bank Accounts and State Immunity from Execution: Doing Justice to the Financial Interests of Creditors." Leiden Journal of International Law 26, no. 1 (February 5, 2013): 73–88. http://dx.doi.org/10.1017/s0922156512000659.
Abstract:
AbstractEmbassy bank accounts are among the properties of states most widely present in foreign states. Accordingly, they constitute an ideal target for attachment by creditors. International instruments have largely upheld state immunity from execution regarding bank accounts, however. Likewise, state practice largely – and apparently increasingly – supports state immunity from measures of attachment, by applying a presumption that funds in embassy bank accounts are used for governmental non-commercial purposes. This approach is overly deferential to the state. Instead, it is argued that domestic courts should require that the state, at least partially, discharge the burden of proof regarding the nature (commercial/sovereign) of the funds in the bank account. A failure to discharge this burden should result in a rejection of immunity. Only such an approach adequately balances the interests of states and creditors, and does sufficient justice to the creditor's right of access to a court. In addition, it is argued that such a balance is also brought about by construing literally general waivers of immunity from attachment, as not requiring an additional specific waiver regarding embassy bank accounts.
7
Goh, Nelson. "Court-Ordered Interim Relief Against States in Aid of Arbitration: Sovereign Immunity, Waiver and Comity." Journal of International Arbitration 34, Issue 4 (August 1, 2017): 679–709. http://dx.doi.org/10.54648/joia2017032.
Abstract:
States and state entities are increasingly involved in commercial arbitration. Despite the fairly settled principles concerning state immunity from adjudication and state immunity from execution, the principles concerning state immunity from interim relief by domestic courts in aid of arbitration remains poorly defined. Adopting Professor McLachlan’s approach toward foreign relations law, this article attempts to sketch the principles which may govern state immunity in the context of interim relief against states in aid of arbitration by applying the rules of state immunity in an allocative manner. It is suggested that it is at least arguable that a state’s consent to arbitration in many cases could amount to a waiver of state immunity from court-aided interim relief by the court located at the seat of the arbitration. This conclusion is likely to strike a balance between over-deference to states by virtue of their sovereign status, and a liberal erosion of the immunity rules in favour of private counterparties.
8
Ishikawa, Tomoko. "Extraterritorial Discovery in Aid of Execution and State Immunity: Case Comment on Republic of Argentina v. NML Capital, Ltd., 573 U.S. ___ (2014)." Accounting, Economics and Law - A Convivium 5, no. 2 (July 1, 2015): 173–92. http://dx.doi.org/10.1515/ael-2014-0016.
Abstract:
AbstractOn 16 June 2014, the Supreme Court of the United States rejected the petition for a writ of certiorari stemming from the dispute over the meaning of the pari passu clause in the Argentine sovereign bonds. This decision had a dramatic impact on Argentina’s sovereign debt restructurings (SDR) – indeed, it arguably led to Argentina’s second default in 13 years on 30 July 2014. On the same day that the petition for certiorari was rejected, the Supreme Court rendered a judgment on the issue of the relationship between discovery in aid of execution against the debtor state’s extraterritorial assets and the law of state immunity. In Republic of Argentina v. NML Capital, Ltd., judgment of 16 June 2014, the Supreme Court affirmed the Second Circuit’s conclusion that the extraterritorial assets discovery against two non-party banks in aid of executing the judgments stemming from Argentina’s default of its external debt did not offend Argentina’s sovereign immunity. This comment addresses this judgment on extraterritorial discovery which, although less headline grabbing than the decisions on the pari passu clause, also marks a victory for holdout creditors. It first provides a summary of the background of the case and the judgment, and then considers its implications on the future SDR. Regarding the implications of the case on the future SDR, this comment also describes the developments of law concerning the relationship between the law on foreign investment and SDR (in investment arbitration) and the relationship between investment arbitration awards and sovereign immunity (in US courts). First, it examines the recent decisions in ICSID arbitration concerning the disputes arising from the Argentina’s default and subsequent SDR (Abaclat v. Argentina (decision on jurisdiction and admissibility of 4 August 2011) and Ambiente v. Argentina (decision on jurisdiction and admissibility of 8 February 2013)). In essence, these decisions opened the door to investment treaty arbitration for holdout creditors of international sovereign bonds, for the first time in the history of investment arbitration. It then describes the Second Circuit’s recent decision in Blue Ridge v. Argentina (judgment of 19 August 2013) in which the court concluded that the defendant state in an ICSID arbitration was considered to have waived its jurisdictional immunity under the Foreign State Immunity Act of 1976 (FSIA). It argues that the combination of: (a) Argentina v. NML, (b) Blue Ridge v. Argentina, and (c) the openness of ICSID arbitration to disputes arising from SDR will have potentially serious consequences for future SDR.
9
Shchur, Bohdan V., and Iryna V. Basysta. "ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 3 (September 17, 2021): 257–67. http://dx.doi.org/10.37635/jnalsu.28(3).2021.257-267.
Abstract:
In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations
10
Shchur, Bohdan V., and Iryna V. Basysta. "ECHR decision to refuse to waive the immunity of a person under article 1 of the protocol no. 6: Individual interpretations of the essence and consequences." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 3 (September 17, 2021): 257–67. http://dx.doi.org/10.37635/jnalsu.28(3).2021.257-267.
Abstract:
In present-day Ukraine, there is no unanimous answer to the question of the essence and consequences of the ECHR decision to refuse to waive immunity under Article 1 of the Protocol No. 6 either in the national criminal procedural legislation, or in the theory of criminal procedure, or among judges, investigators, prosecutors. Therefore, the purpose of the present paper is to try to attempt to formulate individual approaches to address this issue. The relevance of the subject under study is conditioned upon its theoretical and practical components. The former is that there this area is heavily understudied, and judicial practice, among other things, requires a certain scientific basis to formulate individual positions in their unity. The dilemma proposed in the title of this study was also addressed by members of the Scientific Advisory Board of the Supreme Court, who were approached by judges of the Grand Chamber for scientific opinions, emphasising the urgency and necessity of feedback from practitioners. To formulate the individual approaches serving the purpose of this study, the authors employed such general and special research methods as dialectical, induction and deduction, Aristotelian, system-structural, sampling method, comparison, and legal forecasting. Notwithstanding the fact that the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6, adopted by its plenary session in accordance with Article 4 of the Protocol No. 6 to the General Agreement on Privileges and Immunities of the Council of Europe, is “procedural”, it was proven that the Grand Chamber of the Supreme Court has the authority to conduct proceedings on the application of such a person to review the judgment precisely in exceptional circumstances. It is emphasised that the ECHR decision should be considered as one that does not aim at the final assessment of criminal proceedings, so it cannot be equated with the decision of an international judicial institution, which would state Ukraine's violation of international obligations in court and the order of its execution will differ. The authors also address the fact that the consequences of the ECHR decision to refuse to waive the immunity stipulated in Article 1 of the Protocol No. 6 are critical. After all, such a decision of the European Court of Human Rights is the “bell” for Ukraine, which, among other things, may hint at the probability that the Court will identify the facts of human rights violations
Dissertations / Theses on the topic "Waiver of immunity from execution":
1
Chamlongrasdr, Dhisadee. "Implications from the undertaking to arbitrate : waiver of immunity from jurisdiction and from execution." Thesis, University of London, 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.428121.
2
Vodounon-Djegni, Comlan René. "L’exécution des sentences arbitrales contre les personnes publiques de l’OHADA." Thesis, Université Côte d'Azur, 2022. http://www.theses.fr/2022COAZ0008.
Abstract:
La thèse porte sur « L’exécution des sentences arbitrales contre les personnes publiques de l’OHADA ». Elle a pour but de démontrer comment mettre en œuvre ces sentences sans se heurter à l’immunité d’exécution des personnes qui en bénéficient. En effet, en l’absence d’une exception arbitrale, l’interdiction de l’exécution forcée et des mesures conservatoires à l’encontre de ces personnes semble s’étendre à l’exécution forcée des sentences arbitrales contre les personnes publiques de l’OHADA. Or, comme ces dernières, l’immunité d’exécution a également un fondement contractuel ; c’est une règle d’ordre public de protection à laquelle le bénéficiaire peut renoncer. Donc, son application ne serait requise que si son bénéficiaire n’y a pas renoncé. Mais, pour être valable, la renonciation à l’immunité d’exécution doit être expresse, au sens du droit international coutumier, dont fait partie la Convention des Nations Unies sur l’immunité juridictionnelle des Etats et de leurs biens du 2 décembre 2004, applicable en droit OHADA, pour raison de droit. Cette condition de validité de la renonciation pose le problème de l’efficacité des contrats soumis aux règles impératives du droit public ou des conventions et règlements d’arbitrage. Alors, faudrait-il envisager la réécriture des modèles habituels de conventions et règlements d’arbitrage pour y intégrer cette condition ? Cette approche garantirait l’effectivité des sentences arbitrales administratives, sur le fondement de la force obligatoire des contrats (Pacta sunt servenda) et de leur exécution de bonne foi. Aussi, pourrait-on renforcer cette renonciation par la mention de biens affectés à l’activité en cause ou à l’exécution de la sentence qui s’ensuivra sans lien avec l’activité qui y a donné lieu. En tout état de cause, l’immunité d’exécution ne s’oppose ni à l’identification des débiteurs des condamnations pécuniaires des personnes publiques, ni à l’exequatur des sentences arbitrales adm inistratives, ni même à l’exécution volontaire ou spontanée desdites sentences. Ainsi, en dépit de sa conception absolue ou stricte, l’immunité d’exécution de l’OHADA a des limites à l’égard des sentences arbitrales administrativesThe thesis focuses on " The execution of arbitral awards against public persons of OHADA ". Its purpose is to demonstrate how to implement these sentences without coming up against the immunity from execution of the persons who benefit from them. Indeed, in the absence of an arbitration exception, the prohibition of forced execution and interim measures against these persons seems to extend to the forced execution of arbitral awards against public persons of the OHADA. However, like the latter, immunity from execution also has a contractual basis ; it is a rule of public order of protection which the beneficiary can waive. Therefore, its application would only be required if its beneficiary has not waived it. However, to be valid, the waiver of immunity from execution must be express, within the meaning of customary international law, of which the United Nations Convention on Jurisdictional Immunity of States and their Property of December 2, 2004 forms part. applicable in OHADA law, for legal reasons. This condition of validity of the waiver poses the problem of the effectiveness of contracts subject to the mandatory rules of public law or arbitration agreements and regulations. So, should we consider rewriting the usual models of arbitration agreements and rules to include this condition ? This approach would guarantee the effectiveness of administrative arbitration awards, based on the binding force of contracts (pacta sunt servenda) and their performance in good faith. Also, this waiver could be reinforced by the mention of property assigned to the activity in question or to the execution of the award which will ensue unrelated to the activity which gave rise to it. In any event, immunity from execution does not preclude either the identification of the debtors of the pecuniary judgments of public persons, nor the exequatur of administrative arbitration awards, nor even the voluntary or spontaneous execution of the said sentences. T hus, despite its absolute or strict design, OHADA immunity from execution has limits with respect to administrative arbitral awards
3
Prasad, Aman. "Sovereign Immunity from Execution of Arbitral Awards : A Focus on Attaching and Executing Central Bank Assets and 2004 UNSCI." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-416632.
Abstract:
The past few decades have seen a veritable explosion of investment treaty and other arbitration claims brought against States. Many of these claims have been heard through ICSID arbitration. In comparison to other arbitration frameworks, the ICSID regime has its own self-contained rules for enforcement. Thus, given the significant increase in arbitration claims against States, on the one hand, and States’ not too seldom invoking of the defence of sovereign immunity, on the other hand, this treatise is timely in addressing various outstanding issues that award-creditors have and will continue to encounter when dealing with defaulting States. The doctrine of sovereign immunity translates into the conventional wisdom that a State cannot be sued without its consent in foreign courts. This doctrine derives from the practical consequence that the sovereign makes the law, and consequently can break it too. This idea is an extension of primarily the common law doctrine to the international plane, which emerged largely as a result of international comity.[1] This concept is also based upon principles ‘equality’ in terms of ‘equal sovereign status’. Some authors even call it ‘independence’ and ‘dignity’ etc., In this respect, the ICJ has also held that it was equality, that is the basis, i.e. justification for the general rule of immunity. The theory of immunity has gradually shifted from absolute to restrictive immunity, making it significantly easier for award-creditors to enforce an arbitral award. However, the barrier vis-à-vis immunity from execution makes the last link in ITA vulnerable. This evolution has made substantially an easier task for award-creditors in ITA and ISDS holding an arbitration award against a sovereign State. In view of this relatively at ease syndrome that award-creditors now possess, the immunity protections granted to State and its assets will be accessed albeit the proportionality test of acta jure imperii (i.e. sovereign or government purpose) & acta jure gestionis (i.e. commercial or mixed purpose) and the measurement standard applied to such tests is UNSCI 2004, which are now largely constituting States customary international law. Ultimately, to the author’s opinion, the value of international arbitration (‘ITA and ISDS’) as a means and ends of solving disputes is dependent upon the extent to which arbitral awards are honoured and enforced. In this light, the author can vociferously say that sovereign immunity remains a significant impediment against award-creditors seeking to enforce arbitral awards against unwilling States. The barrier is not one that will fade away. Thus, outstanding award-creditors could be advised to exercise some pressure through alternate and viable forms of enforcement measures. Therefore, the States should not stand-alone to shield their commercial assets from enforcement, attachment and execution, especially for de minimis sovereign purposes.[2] [1] R Doak Bishop (ed), Enforcement of Arbitral Awards against Sovereigns (JurisNet, LLC Publ 2009). [2] R Doak Bishop (ed), Enforcement of Arbitral Awards against Sovereigns (JurisNet, LLC Publ 2009).My thesis opposition was done through virtual presentation in Zoom.
4
Daneshvar, Fatemeh. "L’immunité juridictionnelle des États et des organismes d'État." Thesis, Université de Lorraine, 2018. http://www.theses.fr/2018LORR0270.
Abstract:
L'immunité juridictionnelle des États a été pendant des siècles une question incontestée fondée sur le principe de l'égalité des Etats et sur leur indépendance absolue. Cette règle a été élaborée à une époque où tenter une action contre un État dans un pays étranger aurait été considéré comme une violation de sa souveraineté. Toutefois, les fonctions des Etats ont changé au cours des siècles. Désormais, les Etats s’engagent dans les activités commerciales comme une personne privée et jouent un rôle essentiel dans ce secteur.Alors, bien que le droit de l'immunité soit lié à l'octroi de l'immunité aux États pour leur permettre d'accomplir efficacement les fonctions publiques, le droit international moderne n'exige pas que les tribunaux d'un Etat s’abstiennent de connaître un litige simplement parce que l’État étranger n'a pas la volonté de défendre.Ce travail de recherche, est donc consacré à l’étude de l’immunité de juridiction et l’immunité d’exécution afin de montrer le droit international actuel sur la matière.Cette thèse vise à examiner une question spécifique qui a été mise en évidence au cours de ces dernières années. Comment et dans quelle mesure les États et ses démembrements devraient être soumis à des règles spécifiques de l'immunité d’Etat ?The issue of jurisdictional immunity of states was for centuries an undisputed matter based on the principle of state equality and absolute independence of states. The rules were developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country. However, the functions of states have changed over the centuries and nowadays states are involved in commercial activities as a private person and accordingly play an essential role in the commercial activities of the world. In fact, the issue of state immunities is an increasingly important and rapidly developing area of international law and practice. The state practice reflects the emerging global consensus that States and State enterprises can no longer claim absolute, unrestrained immunity from the proper jurisdiction of foreign courts, especially for their commercial activities. Therefore, although the law of state immunity is related to the grant of immunities to states to enable them to carry out their public functions effectively, modern international law does not require the courts of one state to refrain from deciding a case merely because a foreign state is an unwilling defendant. It is therefore important to know how a plea of state immunity may be made and to what type of dispute it applies
5
Roß, Annegret [Verfasser], and Paul [Akademischer Betreuer] Schulze-Lefert. "From perception to execution: Elucidation of signaling components that link initial MTI activation to local and systemic immunity in Arabidopsis / Annegret Roß. Gutachter: Paul Schulze-Lefert." Köln : Universitäts- und Stadtbibliothek Köln, 2012. http://d-nb.info/1046175750/34.
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Risser, Julien. "La notion de gage général." Thesis, Université de Lorraine, 2020. https://docnum.univ-lorraine.fr/ulprive/DDOC_T_2020_0159_RISSER.pdf.
Abstract:
Quiconque s’est obligé personnellement, est tenu de remplir son engagement sur tous ses biens mobiliers et immobiliers, présents et à venir. C’est par cette formule lumineuse que l’article 2284 du Code civil (ancien article 2092 du Code Napoléon) introduit en droit français ce qu’il est convenu d’appeler le gage général. Incontournable en droit privé, invoquée par la doctrine, la jurisprudence et même la loi, cette notion n’a, paradoxalement, fait l’objet d’aucune étude approfondie. Le gage général ne manque pourtant pas d’actualité, l’introduction du patrimoine d’affectation à travers la fiducie et l’EIRL ne constituant que l’arbre qui cache la forêt. Successions, régimes matrimoniaux, procédures civiles d’exécution, cautionnement, insolvabilité, autant de matières dont les évolutions affectent le mécanisme de responsabilité patrimoniale du débiteur. D’aucuns avancent que ces évolutions signeraient le déclin, voire la disparition de la notion de gage général. L’affirmation se justifie-t-elle ? Il convenait, pour le vérifier, de déterminer les contours et le contenu de la notion avant de mesurer les modifications engendrées par le droit contemporain. À partir d’une analyse approfondie des réflexions doctrinales, il est proposé une identification précise de la notion de gage général, mettant en exergue son rôle central dans l’obligation. Une fois la notion identifiée, l’étude apporte un éclairage sur les diverses évolutions du droit privé qui ont mis à l’épreuve le gage général, ainsi que sur les évolutions du droit public qui ont fait émerger la notion dans un champ du droit qui lui était jusqu’ici inconnuWhoever is personally bound for an obligation is obligated to fulfill it out of all of his property, movable and immovable, present and future. These are the words of the article 2284 of the French Civil code introducing a fundamental notion : the common pledge. Even if it is frequently used by academics, judges and the legislator, this notion remains largely unstudied. The common pledge is, however, surrounded by topical issues : the introduction of the trust patrimony in French law, and multiple changes in family law, enforcement procedures, security law, insolvency law have transformed the common pledge mechanism. Some scholars assert these evolutions have caused the decline of the notion, if not its dissolution. Are these statements justified ? To answer to the question, the notion of common pledge has been first identified with accuracy. Then, the different evolutions that have affected it in contemporary law have been highlighted. It appears that, in private law, the common pledge has been deeply altered, whereas in public law, the notion is emerging
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Lima, Luciana Moura. "AS IMUNIDADES DE JURISDIÇÃO E EXECUÇÃO DOS ENTES DO DIREITO PÚBLICO INTERNACIONAL E A GARANTIA DOS CRÉDITOS TRABALHISTAS." Pontifícia Universidade Católica de Goiás, 2012. http://localhost:8080/tede/handle/tede/2657.
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LUCIANA MOURA LIMA.pdf: 895560 bytes, checksum: 62936e4bfd8688ee70e7a364af251d81 (MD5)
Previous issue date: 2012-11-19This thesis turns to the positioning of the Brazilian legal system where the worker ever though the credit guarantee labor faces of immunity from jurisdiction or execution of a Being Public International Law. The work in question points out the difference between the immunity from jurisdiction and execution of a being public international law, points out that for each entity the standard provides a different treatment and attempts to demonstrate that this position hurts precepts of human rights guaranteed in international treaties where Federative Republic of Brazil is a signatory. Finally, we analyze the international treaties that deal with human rights can come in the future to have a normative status hierarchical supralegalidad that the doctrine classified as control of conventionality. Thus, certain labor rights play a key role of human rights and become inseparable. positions in volving new control standards and aspects of modern process, especially the process of working to wards the labor credits.
Essa dissertação se volta para o posicionamento do ordenamento jurídico brasileiro quando o trabalhador mesmo tendo a garantia do crédito trabalhista se vê diante das imunidades de jurisdição ou execução dos Entes de Direito Público Internacional. O trabalho em questão aponta a diferença entre a imunidade de jurisdição e a de execução dos Entes de Direito Público Internacional, destaca que para cada ente a norma dá um tratamento distinto e tenta demonstrar que esse posicionamento fere preceitos dos direitos humanos assegurados em tratados internacionais onde a República Federativa do Brasil se faz signatária. Por fim, analisamos que os tratados internacionais que versam sobre direitos humanos terão um status normativo hierárquico de supralegalidade que a doutrina classificou como sendo controle de convencionalidade. Assim sendo, certos direitos trabalhistas assumem papel fundamental aos Direitos Humanos e desses passam a ser indissociáveis. Implicando novos posicionamentos de controle das normas e aspectos de processualística moderna, em especial ao processo do trabalho perante os créditos trabalhistas.
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Martins, Júnior Lázaro Alves. "IMUNIDADE DE EXECUÇÃO CONTRA ESTADOS ESTRANGEIROS NAS AÇÕES TRABALHISTAS." Pontifícia Universidade Católica de Goiás, 2011. http://localhost:8080/tede/handle/tede/2649.
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LAZARO ALVES MARTINS JUNIOR.pdf: 977344 bytes, checksum: a62a188f9b3cb28c468092d2e9472547 (MD5)
Previous issue date: 2011-12-20The present study aims to analyze the institution of diplomatic immunity procedural matters and the elements that give them footstool, confronting him with the interpretation that leads to its partial exemption for labor law formed in the primeval bodies in the field of enforcement actions against foreign states with local representatives. Boasting the Foreign States sovereignty and therefore valid legislation in their domestic sphere that extends to the territories requiring compliance with diplomatic immunities to the right of diverse country, perquire is the reason for the immunity from enforcement of foreign States, which maintain with retaining legal and logical to see repealed by idiosyncratic understanding within the Labour Court, one of the segments of national jurisdiction, moving away from the literal interpretation of national legislation in force in relations, forgetting the rules of classical hermeneutics, as well as and especially ignoring the laws of those sovereign countries that has not violating fundamental human rights domestically and internationally. It is considered that the Judiciary, under pressure from the defense will be negative adjudication, advancing into the field reserved for the legislative branch that shows silent for reasons of political nature, printing the current understanding wife who defends post-positivist activism justice to the phenomenon of judicialization of social issues. It appears that the understanding implemented by labor justice of first instance and the core of this study empirically equivalent to a placebo and no treatment generates isonomic court plan among workers in violation of his rights by their employers as uniquely allows the attachment of assets will not affect activities diplomatic, legal entities of the external public, not extending this understanding to processes that involve national federal entities bearing the same status before the absolute inalienability and immunity from seizure of their property of any kind. Analysis and construction of the study is based on the literature and case law, having as a basis for inafastabilidade theory of state sovereignty and the consequent effect of its legal system while consistent with the fundamental precepts of acceptance supra. The conclusion is not appropriate to assert depart without sufficient legal basis, implementing the immunity of foreign States constitutionally elect their property as inalienable in our country when the federal entities enjoy the same privilege, the Legislature should implement regramento law that allows the recruited worker in our country by foreign States see themselves adequately compensated for, but without violating the sovereignty emanating from the independent state through its political structures, because this attack compromises the essential harmonization of diplomatic relations in today's globalized times and the usurpation of powers promotes hate among the leading powers to undue interference by the judiciary and growing in the field of legislation, contributing to the weakening of the parliament and conflicts that are causing the fading ideal legal and democratic foundation magnum stamped on national and political activism to foster ideology that favors the current panorama.
O presente estudo tem como objetivo analisar o instituto da imunidade diplomática no âmbito processual e os elementos que lhes dá supedâneo, confrontando-o com a interpretação que leva a sua parcial derrogação pela jurisprudência trabalhista formada nas instâncias primevas no campo das ações de execução contra os estados estrangeiros com representações locais. Gozando os Estados Estrangeiros de soberania e, portanto, de legislação válida em seu âmbito interno que se estende aos territórios diplomáticos exigindo a observância às imunidades perante o direito de país diverso, perquire-se o motivo da imunidade de execução dos Estados Estrangeiros, que mantêm-se com arrimo legal e lógico, se ver derrogada por entendimento idiossincrático no âmbito da Justiça Trabalhista, um dos segmentos da jurisdição nacional, se afastando da interpretação literal da legislação vigente nas relações nacionais, olvidando das regras de hermenêutica clássicas, bem como e sobretudo ignorando a legislação soberana daqueles países que não se apresenta violadora dos direitos humanos fundamentais no plano interno ou internacional. Considera-se que o Poder Judiciário, sob a pressão de lhe ser defesa a negativa da prestação jurisdicional, avança sobre campo reservado ao Poder Legislativo que se mostra omisso por razões de cunho político, imprimindo entendimento que esposa corrente pós-positivista que defende o ativismo judicial diante do fenômeno da judicialização das questões sociais. Constata-se que o entendimento implementado pela justiça laboral de primeiras instâncias e cerne deste estudo equivale empiricamente a um placebo e gera tratamento não isonômico no plano judicial entre trabalhadores prejudicados em seus direitos pelos respectivos empregadores quando permite excepcionalmente a penhora de bens não afetos as atividades diplomáticas, pessoas jurídicas de direito público externo, não estendendo este entendimento aos processos que envolvem entes federativos nacionais que ostentam a mesma natureza jurídica diante da inalienabilidade e impenhorabilidade absoluta de seus bens de qualquer espécie. A análise e construção do estudo fundamenta-se na pesquisa bibliográfica e jurisprudencial, tendo como teoria de base a inafastabilidade da soberania dos Estados e consequente vigência de seu ordenamento jurídico quando em consonância com os preceitos fundamentais de aceitação supranacional. Conclui-se não se asseverar pertinente derrogar, sem base legal suficiente, a imunidade de execução dos Estados Estrangeiros que elegem constitucionalmente seus bens como inalienáveis, quando em nosso país os entes federativos gozam do mesmo privilégio, devendo o Poder Legislativo implementar regramento legal que permita ao trabalhador recrutado em nosso país por Estados Estrangeiros ver-se indenizado por forma adequada, mas, sem violar a soberania que emana do Estado independente através de sua estruturação política, pois, esta agressão compromete a imprescindível harmonização das relações diplomáticas nos tempos globalizados hodiernos e fomenta a usurpação de competências provocando cizânia entre os Poderes com a indevida e crescente ingerência do Judiciário no campo legislativo, contribuindo para o enfraquecimento do parlamento e provocando conflitos que fazem esmorecer o ideal jurídico e democrático estampado no alicerce magno nacional e fomentam o ativismo político com ideologia que se favorece com o atual panorama.
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Kudrna, Jaroslav. "Státní imunita na prahu 21. století: Soumrak nebo renesance?" Doctoral thesis, 2018. http://www.nusl.cz/ntk/nusl-388681.
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1/3 ABSTRACT STATE IMMUNITY AT THE DAWN OF THE 21ST CENTURY: TWILIGHT OR RENAISSANCE? JAROSLAV KUDRNA, ESQ., LL.M. State immunity is a foundation of public international law. Sovereign immunity is based on the fundamental principle of international law, namely the equality of states - par in parem non habet imperium. State immunity is thus a manifestation of state sovereignty and states demonstrate respect for the sovereignty of other states by according immunity to foreign states appearing before their courts. The principle of state immunity is a dynamic area of public international law. State practice is continually evolving through national laws and court rulings. The aim of this thesis is to describe the current development of state immunity and to identify possible future trends. Another objective is to draw from current developments and offer practical recommendations on state immunity for both investors and states. The 20th century can be described as a twilight of state immunity: an absolute theory of state immunity shifted towards a restrictive one. That century witnessed the decline and fragmentation of state immunity. In contrast, if the UN Convention on jurisdictional immunities of states and their property enters into force and is ratified by a large number of states, state immunity might...
Books on the topic "Waiver of immunity from execution":
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Law Reform Commission of Canada. Immunity From Execution. S.l: s.n, 1987.
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Mockle, Daniel. Immunity from execution: A study paper. Ottawa, Canada: Law Reform Commission of Canada, 1987.
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Mockle, Daniel. Immunity from execution: A study paper prepared for the Law Reform Commission of Canada. Ottawa: The Commission, 1987.
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Law Reform Commission of Canada. Immunity from execution: A study paper prepared for the Law Reform Commission of Canada. Ottawa: The Commission, 1987.
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Mockle, Daniel. Immunity from execution: A study paper prepared for the Law Reform Commission of Canada. Ottawa: Law Reform Commission of Canada, 1987.
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Damian, Helmut. Staatenimmunität und Gerichtszwang: Grundlagen und Grenzen der völkerrechtlichen Freiheit fremder Staaten von inländischer Gerichtsbarkeit in Verfahren der Zwangsvollstreckung oder Anspruchssicherung = State immunity and judicial coercion : fundamentals and limits of state immunity from attachment and execution under public international law. Berlin: Springer, 1985.
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Eileen, Denza. Waiver of Immunity. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198703969.003.0036.
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This chapter explores Article 32 of the Vienna Convention on Diplomatic Relations which highlights the waiver of immunity of diplomatic agents. According to Article 32, the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. In addition, the Article also states that the waiver sent must always be express and that the initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. Finally, the Article also states that waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.
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Eileen, Denza. Immunity from Execution. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198703969.003.0034.
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This chapter analyses Article 31.3 of the Vienna Convention on Diplomatic Relations which stresses the immunity from execution of the diplomatic agent. Article 31.3 states that no measures of execution may be taken in respect of a diplomatic agent except in cases regarding the sub-paragraphs (a), (b), and (c) of Article 31.1., and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. The principle of immunity from execution derives from the diplomat’s inviolability of person, residence, and property as well as from his immunity from civil jurisdiction. However, a diplomat’s residence may be vulnerable to execution if it is part of a larger block owned by the sending State and a judgment of a national court declares that the block as a whole is not exempt from execution.
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Library of Congress. Congressional Research Service, ed. Waiver of eleventh amendment immunity from suit: State survey. [Washington, D.C.]: Congressional Research Service, Library of Congress, 1988.
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Okeke, Edward Chukwuemeke. Scope of State Immunity. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190611231.003.0004.
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This chapter deals with the scope of State immunity. It examines who and what benefits from the jurisdictional immunity of a State, and under what conditions or circumstances. Although State immunity belongs to the State itself, States act through agents or agencies. The chapter also examines the distinction between immunity ratione personae and immunity ratione materiae, between acta jure imperii and acta jure gestionis for purposes of the doctrine of restrictive State immunity. It analyzes the common exceptions to State immunity, as well as some controversial ones. The chapter also examines what constitutes a waiver of State immunity. However, some courts consider a waiver as an exception, which may be a vestige of the doctrine of absolute State immunity under which no suit could be brought against a State without its consent. In the end, exceptions and waivers have the same effect in the sense that immunity is denied the State.
Book chapters on the topic "Waiver of immunity from execution":
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Kadelbach, Stefan. "State Immunity, Individual Compensation for Victims of Human Rights Crimes, and Future Prospects." In Remedies against Immunity?, 143–57. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_7.
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AbstractThis chapter first recapitulates the state of affairs as to the principle of state immunity and why exceptions from jurisdictional immunity for gross violations of human rights and humanitarian law are not recognized. It explores customary law and the global compensation treaty between Germany and Italy. Both indicate that Italy would be obligated to indemnify Germany from individual claims raised before Italian courts.In a second step, the development towards individual rights in public international law will be taken up. It appears that human beings are increasingly recognized as holders of individual claims but, apart from human rights treaty systems, lack the capacity under international law to invoke their rights before courts. Instead, they depend on their home states, which have standing but are not entitled to waive the individual rights of their citizens.In order to reconcile the seemingly antagonistic regimes of state immunity and claim settlement, prospects for a friendly solution of the present dilemma will be assessed. Against the background of cases pending before Italian courts, it will be examined whether the distinction between jurisdictional immunity and immunity from execution opens up a way out of the impasse, which the two states and private capital could pursue, and whether this solution would create a precedent for other similar constellations.Lastly, some concluding remarks will address lessons to be learnt for future conflicts. They will deal with elements of a general regime of compensation, drawing from the experience of both past reparation schemes and the experience of reconciliation in post-totalitarian societies. Such elements could be a duty to seek bona fide settlements, possible consequences of violations for domestic court proceedings, methods of assessing damages inspired by mass claim processing, the categorization of claims according to the gravity of violations, rules on evaluating evidence, procedures to give victims a say, and appropriate forms of monetary and non-pecuniary compensation including the necessary institutional framework.
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Bismuth, Régis. "Expanding Immunity from Execution Through the Backdoor: The French Example." In Sovereign Immunity Under Pressure, 449–73. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-030-87706-4_17.
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Salvati, Pierluigi. "Foreign Central Banks and Immunity from Execution: Too Sovereign to Be Attached?" In Sovereign Immunity Under Pressure, 417–48. Cham: Springer International Publishing, 2022. http://dx.doi.org/10.1007/978-3-030-87706-4_16.
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Winch, Phoebe D. "State Immunity and the Execution of Investment Arbitration Awards." In Public Actors in International Investment Law, 57–77. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-58916-5_4.
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AbstractThe doctrine of state immunity occupies a fundamental place in international law. The application of the doctrine, largely left to the national laws of states, is not consistent. One particular area of inconsistency is the treatment of the plea of state immunity from execution of arbitral awards resulting from investor-state disputes. The issue of state immunity from execution has come to the fore in light of a number of recent attempts by award-creditors to attach their awards against the assets of a foreign state located in jurisdictions considered to be “pro-enforcement”, such as France and Belgium. This chapter considers the plea of state immunity and the execution of investment arbitration awards from the perspective of the forum state. In particular, it addresses the introduction of procedural and substantive amendments to French and Belgian laws on state immunity following these attempts by award-creditors to seize foreign state assets located in their respective jurisdictions. The chapter posits a way forward for investors seeking to navigate the landscape governing state immunity from execution.
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Damain, Helmut. "State Immunity and Judicial Coercion Fundamentals and Limits of State Immunity from Attachment and Execution under Public International Law." In Staatenimmunität und Gerichtszwang/State Immunity and Judicial Coercion, 193–203. Berlin, Heidelberg: Springer Berlin Heidelberg, 1985. http://dx.doi.org/10.1007/978-3-642-70685-1_10.
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Krieger, Heike. "Sentenza 238/2014: A Good Case for Law-Reform?" In Remedies against Immunity?, 71–89. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_4.
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AbstractSentenza 238/2014 is an important judgment which does not only concern the concrete case at hand but also pushes for a change in the law of state immunity. However, such attempts at law-making by national courts may not always attain their goal but may exert adverse effects which are harmful for the international legal order. Sentenza 238/2014 may have an impact on three different yet related issues central to the future development of international law: the relationship between international and national law, exceptions to immunities, and individual reparations in cases of mass atrocities.This chapter criticises law-making through non-compliance with international judicial decisions by national courts. Judges in democratic states under the rule of law who try to push for law-reform, by initiating non-compliance with decisions of international courts, should be aware that they may act in the company, and thereby in support of, courts in regimes with autocratic tendencies, such as the Russian Constitutional Court, which refuses to comply with judgments of the European Court of Human Rights. Furthermore, the chapter argues that immunity from jurisdiction and immunity from execution should be kept distinct and that human rights exceptions should not be applied to immunity from execution. Such a differentiation remains justified because measures of constraint against property used for government non-commercial purposes intrude even further onto sovereign rights than the institution of proceedings before courts in the forum state. It is particularly difficult for states to protect assets and other property situated in a foreign state. These assets may therefore be more susceptible to abusive enforcement measures while simultaneously forming an essential basis for the actual conduct of international relations.The chapter concludes by advocating a cautious approach to individual reparations in cases of mass atrocities. This more cautious approach observes the complexities of ending armed conflicts and negotiating peace deals. An individual right to monetary compensation based on civil claims processes does not allow for taking into account broader political considerations related to establishing a stable post-war order. Such a right is conducive to bilateral settlements between the state parties concerned, which might create new injustices towards other groups of victims. It might also overburden negotiations for a settlement to an ongoing armed conflict.The chapter thereby starts from the assumption that the stability of the international legal order itself as guaranteed by concepts such as immunities or the respect for its judicial organs serves to protect human rights, albeit indirectly.
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Bernini, Giorgio, and Albert Jan Van den Berg. "The enforcement of arbitral awards against a state: the problem of immunity from execution." In Contemporary Problems in International Arbitration, 359–73. Dordrecht: Springer Netherlands, 1987. http://dx.doi.org/10.1007/978-94-017-1156-2_34.
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Palchetti, Paolo. "Right of Access to (Italian) Courts über alles? Legal Implications Beyond Germany’s Jurisdictional Immunity." In Remedies against Immunity?, 39–53. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_2.
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AbstractThe main consequence of Sentenza 238/2014 is that Germany has been denied jurisdictional immunities before Italian courts. However, the inflexible conception of the right of access to courts adopted by the Corte Costituzionale gives rise to a number of questions that go well beyond the issue at stake in Judgment 238/2014. First, there is the issue of whether the right of access to justice should also prevail over the international customary rule on immunity from execution. Secondly, one may ask whether the need to protect the right provided by Article 24 of the Italian Constitution could trump the criteria established by Italian law for exercising civil jurisdiction in order to allow access to justice in respect to all international crimes, even those committed outside Italian territory and involving individuals having no link to Italy. Finally, there is the question of whether a sacrifice of the right of access to justice would be justified if alternative, non-judicial means of redress were available to the victims; in particular, whether an alternative means of redress should in any case ensure to each and every individual victim full compensation or whether instead, in light of the specific circumstances of the case—the fact that the crimes occurred in the course of an international armed conflict affecting hundreds of thousands of victims—such alternative means could provide only symbolic compensation based on a lump sum settlement. This chapter aims at exploring these and possibly other issues arising in connection to the broad interpretation of the principle of access to justice given by the Corte Costituzionale.
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Paulus, Andreas L. "Between a Rock and a Hard Place: Italian Concerns Between Constitutional Rights and International Law." In Remedies against Immunity?, 337–42. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_18.
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AbstractSentenza 238/2014 has led to a sharp dissonance between the international law of state immunity as interpreted by the International Court of Justice (ICJ) and Italian constitutional law as understood and applied by the Corte Costituzionale. While the interpretation and application by the Italian Constitutional Court (ItCC) of the access-to-courts provision in the Italian Constitution may not have been inevitable, this does not remove the need for finding a solution to the stalemate between international and domestic law. On the one hand, the easy solution, namely that the rejection of German state immunity from jurisdiction does not necessarily remove immunity from execution into German property, appears unlikely to be accepted by the ItCC because it would give stones rather than bread to the complainants and render court access a futile exercise. On the other hand, bringing Sentenza to its logical conclusion would result in Italy having to return to Germany what Italian courts took from her by requiring compensation—either by way of the general international law of restitutio in integrum, which the Corte Costituzionale has neither contemplated nor contradicted, or by way of the 1961 Treaty between Germany and Italy in which Italy promises to indemnify Germany against any further claims. Thus, a compromise would have to distinguish between full access to the Italian courts notwithstanding international immunity—as required by the ItCC—and substantive law, which could accept a more symbolical recognition of the suffering of the victims. That recognition could stem from a direct source other than the two states involved, such as a common fund, and address only the small group of immediate victims who were unjustly, if arguably legally, excluded from the previous compensation scheme of the 1960s. It is by no means certain, however, whether such an outcome would be acceptable to all sides—including the Corte itself. Thus, legal certainty would have to be established as quickly as possible so that the victims can still receive at least symbolic compensation.
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Boggero, Giovanni, and Karin Oellers-Frahm. "Between Cynicism and Idealism: Is the Italian Constitutional Court Passing the Buck to the Italian Judiciary?" In Remedies against Immunity?, 281–309. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_15.
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AbstractIn this chapter we focus on the consequences of Sentenza 238/2014 for the Italian judiciary. The judgment of the Corte Costituzionale obliges the Italian tribunals to admit claims for the reparation of victims or the heirs of victims and to decide on the merits. In this context, a series of difficult legal questions arise that require consistent answers. The practice shows, however, that consistent answers cannot be taken for granted as long as the decision is in the hands of lower-level tribunals. The questions to be solved concern, firstly, who can bring a claim: the victims only or—in cases where they are no longer alive—also their spouses, children, or even grandchildren and other family members? This raises a second question namely whether there is any time limit for bringing claims, which of course touches upon more general concerns, such as intertemporal law, statutory limitations, prescriptions, forfeiture and inadmissibility due to reparation agreements. Thirdly, there is the question as to the specific nature of the reparations: for example, financial reparations and their calculation standards, or satisfaction only? A further question arising from all decisions granting reparation relates to the execution of the judgments, as it seems rather illusory that Germany will comply voluntarily with such judgments. An additional aspect the chapter addresses is the broader impact of the decisions of the Italian judiciary: the non-recognition of state immunity before Italian tribunals will make Italy an attractive forum for similar claims, evidence of which has already emerged. Furthermore, the decisions of the tribunals will serve—although certainly involuntarily—as precedents in similar cases not only in Italy. Such effects will concern issues such as (a) the reparation of war-related claims on an individual basis and (b) their consequences for the readiness of states to terminate armed activities by concluding peace treaties and reparation agreements on a lump sum basis. With a view to actual armed conflicts that are mostly not international armed conflicts the question has then to be asked (c) whether individual reparation claims will lead to discriminatory consequences as reparation will probably only be realizable for victims of war crimes committed by state organs and not those committed by non-state actors. The chapter will then conclude by trying to assess more in general the task of constitutional and/or supreme courts to balance the consequences flowing from their decisions against their power or intent to enhance the development of (international) law.