The Commercial Activity Exception to State Immunity, An introduction

By  Katherine Reece Thomas, Associate Professor at the City Law School

My book entitled “The Commercial Activity Exception to State Immunity, An introduction “has recently been published by Edward Elgar. Having practised the law of state immunity (a bit) and taught it a lot over many years, I was delighted when Edward Elgar asked me to write an introduction to the topic for their series ‘Principles of International Law’.

The concept that states should be treated differently to ordinary litigants has grated over the years. Ever since I attended Hazel Fox’s lectures on the then new UK State Immunity Act and subsequently played a small role as a most junior lawyer in the Tin Council litigation in the late 1980s, the question of state accountability in domestic courts has intrigued me. The geopolitical ramifications of the doctrine and the multi-jurisdictional aspect of the relevant litigation have added to the attraction.

If a state descends into the marketplace (as Lord Denning put it in the 1970s) should it not be subjected to the same rules as an ordinary litigant? Does international law require that states be afforded special treatment? Of course, it does because states are sovereign, independent and equal but it is that just? What are the exceptions and how do they operate in practice?

This book is an attempt to explore the commercial activity exception to the immunity of states with a focus on recent case law in the UK and in the USA. The meaning of commercial activity or transaction is explored in domestic law, in customary international law and under the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property (not in force).

The book begins with two chapters introducing the concept of state immunity and the move from absolute to restrictive immunity, first in domestic law and then at the international level. As immunity is effectively a rule of domestic law, the analysis of the public international law rules is perforce rather shorter.

Chapter 3 provides a careful look at the commercial activity exception to immunity from suit in domestic law, again with a focus on the UK and the US statutes but with reference to other common and some civil law jurisdictions. Chapter 4 looks at the exception in international law with particular reference to the UN Convention.

Chapter 5 focuses on immunity from enforcement and queries what measures of constraint can lawfully be used against foreign state assets in various jurisdictions and in international law. Both pre- and post-judgment measures are considered as are attempts to execute and enforce foreign arbitration awards. Chapter 6 explores the meaning of state and state entity in the law of state immunity. The question of head of state immunity is approached in outline.

Chapter 7 strays into more contentious territory by looking at the question of whether foreign central bank assets subject to sanctions can lawfully be seized, with an eye to current events and the call for sanctioned Russian assets to be applied to the reconstruction of Ukraine. Chapter 8 explores recent developments in the US and the UK relating to employment law claims by employees of international organisations and embassies who allege they have been trafficked which raise interesting questions about the use of the commercial activity exception. The relationship between state immunity and criminal liability is also considered.

This is an introductory text, and the approach is practical rather than theoretical.

I have combed English and US case law for recent developments but must point out that, although I am an English solicitor (non-practising) and a New York Attorney (retired), it is not intended in any way that anything in the book be taken as legal advice. I have referred to cases involving maritime law and arbitration but only briefly. These will be the subject of a further study. As may be the specific rules on waiver by states of immunity, service on states, diplomatic immunity and the immunity of international institutions and individuals which are not as such addressed here.

I was assisted in this project by research grants from the University of Notre Dame (USA) in England and City, University of London which enabled me to secure the invaluable help of City PhD student and Italian lawyer, Andrea Pelliconi, and of Barrett Cole, one of my University of Notre Dame law students.

I was keen to highlight the complexity of the commercial activity exception and the importance of analysing how courts have approached the relevant statutes and treaties in this area. The relationship between domestic and international law has also been key to the analysis.

Finally, I hope this book will assist academics, students and practitioners as they approach this sometimes overly technical subject and study its role in domestic and international courts.

More details regarding the book can be found here: https://www.elgaronline.com/monochap/book/9781803923468/front-4.xml