/Enter into force I:den day Government/
The United Nations Convention on immunities of States and their property, adopted on 2 december 2004, in the original wording of the texts apply as Swedish law.
English text of the Convention together with an English translation listed as an annex to this law. Convention, the Arabic, French, Chinese, Russian and Spanish texts are available on the Cabinet Office (the Foreign Ministry).
Annex
United Nations Convention on Jurisdictional Immunities of States and Their Property
The States Parties to the present Convention,
Considering that the jurisdictional immunities of States and their property are generally accepted as a principle of customary international law,
Having in mind the principles of international law embodied in the Charter of the United Nations,
Believing that an international convention on the jurisdictional immunities of States and their property would enhance the rule of law and legal framework, particularly in dealings of States with natural or juridical persons, and would contribute to the codification and development of international law and the harmonization of practice in this area,
Taking into account developments in State practice with regard to the jurisdictional immunities of States and their property,
Affirming that the rules of customary international law continue to govern matters not regulated by the provisions of the present Convention,
Have agreed as follows:
Part I Introduction
Article 1
Scope of the present Convention
The present Convention applies to the immunity of a State and its property, from the jurisdiction of the courts of another State.
Article 2
Use of terms
1. For the purposes of the present Convention:
(a) "court" means any organ of a State, however named, entitled to exercise judicial functions;
(b) "State" means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity;
(iii) agencies or instrumentalities "of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of the sovereign authority of the State;
(iv) representatives of the State acting in that capacity;
(c) "commercial transaction" means:
(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction;
(iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons.
2. In determining whether a contract or transaction is a "commercial transaction" under paragraph 1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the practice of the State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.
3. The provisions of paragraphs 1 and 2 regarding the use of terms in the present Convention are without prejudice to the use of those terms or to the meanings which may be given to them in other international instruments or in the internal law of any State.
Article 3
Privileges and immunities not affected by the present Convention 1. The present Convention is without prejudice to the privileges and immunities enjoyed by a State under international law in relation to the exercise of the functions of:
(a) its diplomatic missions, consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences; and
(b) persons connected with them.
2. The present Convention is without prejudice to privileges and immunities accorded under international law to heads of State ratione personae.
3. The present Convention is without prejudice to the immunities enjoyed by a State under international law with respect to aircraft or space objects owned or operated by a State.
Article 4
Non-retroactivity of the present Convention, Without prejudice to the application of any rules set forth in the present Convention to which jurisdictional immunities of States and their property are subject under international law independently of the present Convention, the present Convention shall not apply to any question of jurisdictional immunities of States or their property arising in a proceeding instituted against a State before a court of another State prior to the entry into force of the present Convention for the States concerned.
Part II General principles
Article 5
State immunity A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.
Article 6
Modalities for giving effect to State immunity
1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.
2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State:
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.
Article 7
Express consent to exercise of jurisdiction
1. A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State with regard to a matter or case if it has expressly consented to the exercise of jurisdiction by the court with regard to the matter or case:
(a) by international agreement;
(b) in a written contract; or
(c) by a declaration before the court or by a written communication in a specific proceeding.
2. Agreement by a State for the application of the law of another State shall not be interpreted as consent to the exercise of jurisdiction by the courts of that other State.
Article 8
Effect of participation in a proceeding before a court
1. A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State if it has:
(a) itself instituted the proceeding; or
(b) intervened in the proceeding or taken any other step relating to the merits. However, if the State satisfies the court that it could not have acquired knowledge of facts on which a claim to immunity can be based until after it took such a step, it can claim immunity based on those facts, provided it does so at the earliest possible moment.
2. A State shall not be considered to have consented to the exercise of jurisdiction by a court of another State if it intervenes in a proceeding or takes any other step for the sole purpose of:
(a) invoking immunity; or
(b) asserting a right or interest in property at issue in the proceeding.
3. The appearance of a representative of a State before a court of another State as a witness shall not be interpreted as consent by the former State to the exercise of jurisdiction by the court.
4. Failure on the part of a State to enter an appearance in a proceeding before a court of another State shall not be interpreted as consent by the former State to the exercise of jurisdiction by the court.
Article 9
Counterclaims
1. A State instituting a proceeding before a court of another State cannot invoke immunity from the jurisdiction of the court in respect of any counterclaim arising out of the same legal relationship or facts as the principal claim.
2. A State intervening to present a claim in a proceeding before a court of another State cannot invoke immunity from the jurisdiction of the court in respect of any counterclaim arising out of the same legal relationship or facts as the claim presented by the State.
3. A State making a counterclaim in a proceeding instituted against it before a court of another State cannot invoke immunity from the jurisdiction of the court in respect of the principal claim.
Part III Proceedings in which State immunity cannot be invoked
Article 10
Commercial transactions
1. 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, the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.
2. Paragraph 1 does not apply:
(a) in the case of a commercial transaction between States;
or
(b) if the parties to the commercial transaction have expressly agreed otherwise.
3. 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 11
Contracts of employment
1. 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 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.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.
Article 12
Personal injuries and damage to property
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 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 13
Ownership, possession and use of property
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 14
Intellectual and industrial property
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 15 Participation in companies or other collective bodies
1. 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.
2. A State can, however, invoke immunity from jurisdiction in such a proceeding if the States concerned have so agreed or if the parties to the dispute have so provided by an agreement in writing or if the instrument establishing or regulating the body in question contains provisions to that effect.
Article 16
Ships owned or operated by a State
1. Unless otherwise agreed between the States concerned, a State which owns or operates a ship cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the operation of that ship if, at the time the cause of action arose, the ship was used for other than government non-
commercial purposes.
2. Paragraph 1 does not apply to warships, or naval auxiliaries, nor does it apply to other vessels owned or operated by a State and used, for the time being, only on government non-commercial service.
3. 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 carriage of cargo on board a ship owned or operated by that State if, at the time the cause of action arose, the ship was used for other than government non-
commercial purposes.
4. Paragraph 3 does not apply to any cargo carried on board the ships referred to in paragraph 2, nor does it apply to any cargo owned by a State and used or intended for use exclusively for government non-commercial purposes.
5. States may "plead all measures of defence, prescription and limitation of liability which are available to private ships and cargoes and their owners.
6. If in a proceeding there arises a question relating to the government and non-commercial character of a ship owned or operated by a State or cargo owned by a State, a certificate signed by a diplomatic representative or other competent authority of that State and communicated to the court shall serve as evidence of the character of that ship or cargo.
Article 17
Effect of an arbitration agreement
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.
Part IV State immunity from measures of constraint in connection with proceedings before a court
Article 18
State immunity from prejudgment measures of constraint
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:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen;
or
(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding.
Article 19
State immunity from measures of constraint post judgment
No post judgment measures of constraint, such as attachment, arrest or execution, 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:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen;
or
(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or
(c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that postjudgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.
Article 20
Effect of consent to jurisdiction to measures of constraint
Where consent to the measures of constraint is required under articles 18 and 19, consent to the exercise of jurisdiction under article 7 shall not imply consent to the taking of measures of constraint.
Article 21
Specific categories of property
1. The following categories, in particular, of property of a State shall not be considered as property specifically in use or intended for use by the State for other than government non-commercial purposes under article 19, subparagraph (c):
(a) property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations or delegations to organs of international organizations or to international conferences;
(b) property of a military character or used or intended for use in the performance of military functions;
(c) property of the central bank or other monetary authority of the State;
(d) property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale;
(e) property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.
2. Paragraph 1 is without prejudice to article 18 and article 19, subparagraphs (a) and (b).
Part V Miscellaneous provisions
Article 22
Service of process
1. Service of process by writ or other document instituting a proceeding against a State shall be effected:
(a) in accordance with any applicable international convention binding on the State of the forum and the State concerned; or
(b) in accordance with any special arrangement for service between the claimant and the State concerned, if not precluded by the law of the State of the forum; or
(c) in the absence of such a convention or special arrangement:
(i) by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or
(ii) by any other means accepted by the State concerned, if not precluded by the law of the State of the forum.
2. Service of process referred to in paragraph 1 (c) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.
3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.
4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.
Article 23
Default judgment
1. A default judgment shall not be rendered against a State unless the court has found that:
(a) the requirements laid down in article 22, paragraphs 1 and 3, have been complied with;
(b) a period of not less than four months has expired from the date on which the service of the writ or other document instituting a proceeding has been effected or deemed to have been effected in accordance with article 22, paragraphs 1 and 2; and
(c) the present Convention does not preclude it from exercising jurisdiction.
2. A copy of any default judgment rendered against a State, accompanied if necessary by a translation into the official language or one of the official languages of the State concerned, shall be transmitted to it through one of the means specified in article 22, paragraph 1, and in accordance with the provisions of that paragraph.
3. The time-limit for applying to have a default judgment set aside shall not be less than four months and shall begin to run from the date on which the copy of the judgment is received or is deemed to have been received by the State concerned.
Article 24
Privileges and immunities during court proceedings
1. Any failure or refusal by a State to comply with an order of a court of another State enjoining it to perform or refrain from performing a specific act or to produce any document or disclose any other information for the purposes of a proceeding shall entail no consequences other than those which may result from such conduct in relation to the merits of the case. In particular, no fine or penalty shall be imposed on the State by reason of such failure or refusal.
2. A State shall not be required to provide any security, bond or deposit, however described, to guarantee the payment of judicial costs or expenses in any proceeding to which it is a respondent party before a court of another State.
Party WE Final clauses
Article 25
Annex
The annex to the present Convention forms an integral part of the Convention.
Article 26
Other international agreements
Nothing in the present Convention shall affect the rights of States Parties and bond in existing international agreements which relate to matters dealt with in the present Convention as between the parties to those agreements.
Article 27
Settlement of disputes
1. States Parties shall endeavour to settle disputes concerning the interpretation or application of the present Convention through negotiation.
2. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which cannot be settled through negotiation within six months shall, at the request of any of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or approval of, or accession to, the present Convention, declare that it does not consider itself bound by paragraph 2. The other States Parties shall not be bound by paragraph 2 with respect to any State Party which has made such a declaration.
4. Any State Party that has made a declaration in accordance with paragraph 3 may at any time withdraw that declaration by notification to the Secretary-General of the United Nations.
Article 28
Signature
The present Convention shall be open for signature by all States until 17 January 2007, at United Nations Headquarters, New York.
Article 29
Ratification, acceptance, approval or accession
1. The present Convention shall be subject to ratification, acceptance or approval.
2. The present Convention shall remain open for accession by any State.
3. The instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General of the United Nations.
Article 30
Entry into force
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
2. For each State ratifying, accepting, approving or acceding to the present Convention after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification, acceptance, approval or accession.
Article 31
Denunciation
1. Any State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations.
2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General of the United Nations. The present Convention shall, however, continue to apply to any question of jurisdictional immunities of States or their property arising in a proceeding instituted against a State before a court of another State prior to the date on which the denunciation takes effect for any of the States concerned.
3. The denunciation shall not in any way affect the duty of any State Party to fulfil any obligation embodied in the present Convention to which it would be subject under international law independently of the present Convention.
Article 32
Depositary and notifications 1. The Secretary-General of the United Nations is designated the depositary of the present Convention.
2. As depositary of the present Convention, the Secretary-
General of the United Nations shall inform all States of the following:
(a) the signature of the present Convention and the deposit of instruments of ratification, acceptance, approval or accession or notifications of denunciation, in accordance with articles 29 and 31;
(b) the date on which the present Convention will enter into force, in accordance with article 30;
(c) any acts, notifications or communications relating to the present Convention.
Article 33
Authentic texts
The Arabic, Chinese, English, French, Russian and Spanish texts of the present Convention are equally authentic.
In WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at United Nations Headquarters in New York on 17 January 2005.
Annex to the Convention
Understandings with respect to certain provisions of the Convention
The present annex is for the purpose of setting out understandings relating to the provisions concerned.
With respect to article 10
The term "immunity" in article 10 is to be understood in the context of the present Convention as a whole.
Article 10, paragraph 3, does not prejudge the question of "piercing the corporate veil", questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid satisfying a claim, or other related issues.
With respect to article 11
The reference in article 11, paragraph 2 (d), to the "security interests" of the employer State is intended primarily to address matters of national security and the security of diplomatic missions and consular posts.
Under article 41 of the 1961 Vienna Convention on Diplomatic Relations and article 55 of the 1963 Vienna Convention on Consular Relations, all persons referred to in those articles have the duty to respect the laws and regulations, including labour laws, of the host country. At the same time, under article 38 of the 1961 Vienna Convention on Diplomatic Relations and article 71 of the 1963 Vienna Convention on Consular Relations, the receiving State has a duty to exercise its jurisdiction in such a manner as not to interfere unduly with the performance of the functions of the mission or the consular post.
With respect to articles 13 and 14
The expression "determination" is used to refer not only to the ascertainment or verification of the existence of the rights protected, but also to the evaluation or assessment of the substance, including the content, scope, and extent, of such rights.
With respect to article 17
The expression "commercial transaction" includes investment matters.
With respect to article 19
The expression "entity" in subparagraph (c) means the State as an independent legal personality, a constituent unit of a federal State, a subdivision of a State, an agency or instrumentality of a State or other entity, which enjoys independent legal personality.
The words "property that has a connection with the entity" in subparagraph (c) are to be understood as broader than ownership or possession.
Article 19 does not prejudge the question of "piercing the corporate veil", questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid satisfying a claim, or other related issues.
The United Nations Convention on immunities of States and their property
The States parties to this Convention;
considering that the immunities of States and their property are widely recognized as customary international law, taking into account the principles of international law embodied in the Charter of the United Nations,
who believe that an International Convention on immunities of States and their property would strengthen the rule of law and improve the legal certainty, particularly in the States ' relations with natural and legal persons, and contribute to the codification and development of international law and the harmonization of practice in this area,
taking into account developments in State practice with regard to immunity from jurisdiction of States and their property,
confirming that the customary rules of international law continues to apply in matters not regulated by the provisions of this Convention
have agreed as follows.
Part I Introduction
Article 1
Scope of the Convention
This Convention concerning the immunity of a State and its property against another State's courts ' jurisdiction.
Article 2
Definitions
1. for the purposes of this Convention,
(a) Court: each State body, regardless of denomination, is competent to exercise judicial functions,
(b) State:
(i) the State and its various public bodies,
(ii) a federal State Government or political subdivisions that have the right to take action in the exercise of public authority and acting in that capacity,
(iii) governmental agencies or other entities, to the extent that they have the right to take and actually take action on the State's sovereign authority, and
(iv) representatives of the State when they are acting in that capacity,
(c) business transaction:
(i) any commercial contract or transaction for the sale of goods or the provision of services,
(ii) agreement on the loan or other transaction of a financial nature, including any warranty or replacement obligation in respect of such loan or transaction,
(iii) any other contract or transaction of a commercial, industrial, commercial or professional nature, but not employment contracts.
2. In determining whether a contract or transaction is a business transaction within the meaning of paragraph 1 (c), should, first and foremost, agreement or transaction's nature is taken into account, but its purpose should also be taken into account, if the contract or transaction if it has been agreed by the parties or the law of the forum State, that purpose is relevant to determining whether the contract or transaction is of non-
commercial nature.
3. the provisions of paragraphs 1 and 2 regarding the use of terms in the present Convention is without prejudice to their use or on the importance they might have in other international instruments or in the internal law of a State.
Article 3
Privileges and immunities not affected by the present Convention
1. The present Convention is without prejudice to privileges and immunities under international law enjoyed by a State with respect to the functions exercised by:
(a) the State's diplomatic missions, consular posts, special missions, diplomatic representations in international organizations or delegations to organs of international organizations or to international conferences, or
(b) persons related to them.
2. this Convention does not affect the privileges and immunities under international law apply heads ratione personae.
3. this Convention does not affect the immunities which under international law are enjoyed by a State with respect to aircraft or space objects owned or operated by a State.
Article 4
The Convention's non-retroactivity
Without prejudice to the application of the rules of this Convention which, independently of the Convention, applicable to property of States and their immunity from jurisdiction under international law, the Convention is not applicable to any issue of immunity from jurisdiction of States and their property that arises in connection with proceedings instituted against a State before a Court of another State prior to the entry into force of the Convention for the States concerned.
Part II general principles
Article 5
State immunity
A State enjoys immunity for himself and his property from the jurisdiction of the courts of another State, as set forth in this Convention.
Article 6
Detailed rules for giving effect to State immunity
1. A State shall give effect to the principle of State immunity under article 5 by refraining from exercising jurisdiction on its courts in proceedings against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.
2. an action brought in a Court of a State shall be considered to be directed against another State, if the other State
(a) is listed as a party to the proceedings, or
(b) is not listed as a party to the proceedings, but the action is actually directed against the other State property, rights, interests or activities.
Article 7
Express consent to exercise of jurisdiction
1. a State cannot invoke immunity in proceedings before a Court of another State concerning a case or a case, if the State has expressly acknowledged that the Court exercises jurisdiction in proceedings
(a) by an international agreement,
(b) by a written agreement, or
(c) by a declaration before the Court or by a written communication in a particular case.
2. A State's consent to another State's law will be applied, should not be construed as a consent to the other State's courts exercising jurisdiction.
Article 8
Effect of participation in a proceeding before a court
1. a State cannot invoke immunity in proceedings before a Court of another State
(a) if it has itself brought an action, or
(b) whether it has intervened in the proceedings or taken other actions relating to the merits of the case. If the State can prove to the Court that it had not been able to find out the facts on which a claim of immunity can be based on, before taking such action, it may however request immunity under these circumstances, if it does so as soon as possible.
2. a State shall not be deemed to have admitted that another State's Court exercises jurisdiction, if it intervenes in proceedings or taking any other action exclusively to
(a) invoking immunity, or
(b) stating right or ownership interest in the property at issue.
3. That a State representative will be appearing as a witness before a Court of another State shall not be interpreted to mean that first-mentioned State agrees that the Court exercises jurisdiction.
4. That a State does not appear in the proceedings before the Court of another State shall not be interpreted to mean that first-mentioned State agrees that the Court exercises jurisdiction.
Article 9
Counterclaim
1. A State which raises an action before the Court of another State cannot invoke immunity from the jurisdiction of the Court with respect to a counterclaim based on the same legal relationship or facts as the principal claim.
2. a State intervening to present a claim in a proceeding before a Court of another State cannot invoke immunity from the jurisdiction of the Court with respect to a counterclaim based on the same legal relationship or facts as the claim that the State has produced.
3. a State that raises a counterclaim in proceedings brought against it by a Court of another State cannot invoke immunity from the jurisdiction of the Court in respect of the principal claim.
Part III proceedings in which State immunity may not be invoked
Article 10
Business transactions
1. If a State engaged in a commercial transaction with a foreign natural or legal person and any disputes according to the relevant international private law rules in view of commercial transaction fall within the jurisdiction of another State, the State cannot invoke immunity from that jurisdiction in a case arising from the transaction.
2. Paragraph 1 shall not apply upon
(a) business transactions between States, or
(b) if the parties to the commercial transaction have expressly agreed otherwise.
3. If a State enterprise or other entity established by a State which is an autonomous legal entity and has the legal capacity to
(a) sue or be sued;
(b) acquiring, owning or possessing and disposing of property, including property which the State has authorized the company or unit to operate or manage, is a party in a case stemming from a commercial transaction in which the entity is involved, this will not affect the State's immunity from jurisdiction.
Article 11
Employment contracts
1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings concerning contracts of employment between the State and an individual for work that fully or partially performed or to be performed in the other State.
2. Paragraph 1 shall not apply to
(a) if the worker is hired to perform certain tasks in public authority, or
(b) if the employee is
(i) a diplomatic representative, as defined in the 1961 Vienna Convention on diplomatic relations,
(ii) a Consul as defined in the 1963 Vienna Convention on consular relations, or
(iii) is part of the diplomatic staff of the Permanent Mission to an international organization or of a special diplomatic mission or are employed as the representative of a State at an International Conference, or
(iv) any other person enjoying diplomatic immunity;
(c) if the subject matter concerns the recruitment, renewal of employment or reinstatement of an individual;
(d) if the matter relates to a person's dismissal or termination and, under decision of the head of State, head of Government or minister for Foreign Affairs of the employer State, such a procedure would come into conflict with the State's security interests;
(e) if the worker is a national of the employer State at the time when the proceedings are instituted, unless the person concerned is a permanent resident of the forum State;
(f) if the employer State and the employee have agreed in writing otherwise, with smaller courts of the forum State with reference to public policy in the country has exclusive rights on the basis of the substantive issues in the case.
Article 12
Personal injury and property damage
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings relating to financial compensation as a result of death or personal injury or property damage or loss of tangible property, caused by an act or omission which may be attributed to the State , if the Act or omission, in whole or in part within the other State, and if the author of the Act or omission was in that territory where the Act or omission occurred.
Article 13
Ownership, possession and use of property
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a Court of another State, if the Court, moreover, has jurisdiction in proceedings relating to the determination of
(a) the State's rights or ownership interests in, or its possession or use of, or liability arising out of its ownership interest in, or the possession or use of real property in the forum State;
(b) the State's rights or ownership interests in movable or immovable property arising from inheritance, gift or property that has no owner, or
(c) the State's rights or ownership interests in the administration of property, such as property, bankruptcy foundations or business property, in its settlement.
Article 14
Intellectual property law
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a Court of another State, if the Court, moreover, has jurisdiction in proceedings relating to
(a) the determination of the State's rights to patents, industrial designs, trade marks or trade names, trademarks, copyrights, or any other form of intellectual property which enjoys a certain, albeit temporary, legal protection in the forum State;
(b) an alleged infringement by the State within the territory of the forum State a right of the nature mentioned in littera (a) above which belongs to a third person and is protected in the forum State.
Article 15 Participation in companies or other associations of legal entities
1. a State cannot invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings relating to the State's participation in a company or other legal entity of Association, regardless of whether the subject is a legal entity or not, and the relationship between the State and the subject or its other participants, if the subject
(a) has participants who are not States or international organizations, and
(b) is registered or made in accordance with the forum State or has its registered office or principal place of business there.
2. However, A State may invoke immunity in such a case if the States concerned have agreed on it or if the disputing parties have agreed to it by a written contract or if it is in the record that establishes or governs the subject in question includes provisions to this effect.
Article 16 ships owned or operated by a State
1. Unless otherwise agreed between the States concerned, a State which owns or operates a ship cannot invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings relating to the operation of the ship, if the ship when the incident occurred at issue was used for other than government non-commercial purposes.
2. Paragraph 1 shall not apply to warships or naval auxiliaries or other ships owned or operated by a State and used, for the time being used exclusively in non-State
commercial traffic.
3. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings relating to the carriage of goods on board a ship owned or operated by the State, if the ship at the time when the incident occurred at issue was used for other than government non-commercial purposes.
4. paragraph 3 shall not apply to goods carried on board the ships referred to in paragraph 2 or cargo owned by a State and used or intended for use exclusively for government non-commercial purposes.
5. States may plead all the means to defend, argue and limited liability available to him regarding the private vessels and goods and their owners.
6. If a case arises in the case of a vessel's status as Prime vessel of non-commercial nature and the vessel owned or operated by a State or cargo owned by a State, a certificate issued by a diplomatic representative or by another competent authority of the State concerned and expressed to the Court shall serve as evidence of the ship or the cargo status.
Article 17
Effect of arbitration agreements
If a State enters into an agreement in writing with a foreign natural or legal person to refer to arbitration disputes relating to a commercial transaction, it may not invoke immunity from jurisdiction before a Court of another State if the Court, moreover, has jurisdiction in proceedings relating to
(a) the arbitration agreement's validity, the interpretation or application,
(b) the arbitration procedure, or
(c) the confirmation or the infringement of the arbitration award, unless otherwise specified in the arbitration agreement.
Part IV State immunity from compulsory measures in connection with court proceedings
Article 18
State immunity against enforcement action before judgment
No coercive measures before judgment, such as attachment, concerning a State's property may be taken in connection with a case before a Court of another State unless and only to the extent
(a) the State has expressly consented to such action to be taken
(i) by means of an international agreement,
(ii) by an arbitration agreement or by a written contract, or
(iii) by a declaration before the Court or a written communication after a dispute between the parties has arisen, or
(b) the State has allocated or earmarked property for the satisfaction of the requirements to which the proceedings relate.
Article 19
State immunity against enforcement action after judgment
No enforcement action after judgment, such as attachment or garnishment, alleging a Government property may be taken in connection with a case before a Court of another State unless and only to the extent
(a) the State has expressly consented to such action to be taken
(i) by means of an international agreement,
(ii) by an arbitration agreement or by a written contract, or
(iii) by a declaration before the Court or a written communication after a dispute between the parties has arisen, or
(b) the State has allocated or earmarked property for the satisfaction of the requirements to which the proceedings relate, or
(c) it has been established that the State exclusively uses or intends to use the property for other than government non-
commercial purposes, and that it is within the forum State, whereby coercive measures may be enforced only after the judgment against property associated with the entity against which the dispute is addressed.
Article 20
Effect of consent to the exercise of jurisdiction with respect to the application of coercive measures
Where consent is required for the application of coercive measures in accordance with articles 18 and 19, the recognition of competence to exercise jurisdiction in accordance with article 7 does not imply consent to the taking of coercive measures.
Article 21
Particular type of property
1. The following kinds of State property shall not be deemed to be the property of the State exclusively uses or intends to use for other than government non-commercial purposes under article 19, littera (c):
(a) property, including bank accounts, which are used or intended to be used in the service of the State's diplomatic missions, consular posts, special missions, diplomatic representations in international organizations or delegations to organs of international organizations or to international conferences, (b) property of a military character or used or intended to be used in the performance of military duties,
(c) property of the central bank or other monetary authority of the State,
(d) property forming part of the cultural heritage of the State or in its archives and which are not, or are intended to be offered for sale, and
(e) property that is included in the exhibition of objects of scientific, cultural or historical interest and which are not, or are intended to be offered for sale.
2. the provisions of paragraph 1 of this article shall be without prejudice to article 18 or article 19 littera (a) and (b).
Part V other provisions
Article 22
Service of process
1. service of a summons or other document relating to the bringing of an action against a State is to be enforced
(a) in accordance with an applicable international Convention where the forum State and the State concerned is a party, or
(b) pursuant to a specific agreement on the service of atmosphere between the claimant and the State concerned, if not the forum State legislation prevents this, or
(c) if there is no such Convention or agreement,
(i) via diplomatic channels to the Ministry of Foreign Affairs of the State concerned, or
(ii) in any other manner accepted by the State concerned, if not the forum State law prevents this.
2. service of a summons under paragraph 1 (c) (i) be deemed to have been effected when the Ministry of Foreign Affairs has received the documents.
3. The documents shall be accompanied by a translation into the official language or one of the official languages of the State concerned.
4. any State that enters an appearance on the substance of a case brought against it may not thereafter assert that service of process was not done according to the provisions of paragraphs 1 and 3 of this article.
Article 23
Default judgment
1. A judgment by default shall not be decided against a State, unless the Court has found that
(a) the provisions of article 22, paragraphs 1 and 3 have been complied with,
(b) at least four months have elapsed from the date on which the writ or other documents about bringing proceedings has been served or is deemed to have been notified in accordance with article 22, paragraphs 1 and 2, and (c) the present Convention does not preclude the Court exercising jurisdiction.
2. a copy of a default judgment against a State, accompanied if necessary by a translation into the official language or one of the official languages of the State concerned, shall be submitted to the State by any of the ways specified in article 22 paragraph 1 and in accordance with the provisions of that paragraph.
3. The time limit for filing a request for a default judgment is repealed shall be at least four months and shall begin to run on the date on which a copy of the judgment is received or is deemed to have been received by the State concerned.
Article 24
Privileges and immunities during court proceedings
1. If a State fails or refuses to comply with a decision of a Court of another State which obliges it to take or refrain from taking a particular action or to present a paper or to provide other information in an objective, it should not lead to other consequences than those that such behavior may have in respect of the substance of the case. In particular, no fine or penalty payment imposed on the State by reason of such failure or refusal.
2. A State shall not be required to provide security, guarantee or pledge, regardless of designation, in order to guarantee the payment of costs or expenses in a case where the defendant before the Court of another State.
Part VI Final Provisions
Article 25
Annex
This Convention Annex forms an integral part of the Convention.
Article 26
Other international agreements
Nothing in this Convention shall affect the rights and obligations of States parties among themselves under international agreements that apply to them and relating to the conditions referred to in this Convention.
Article 27
Dispute resolution
1. States parties shall endeavour to settle disputes concerning the interpretation or application of this Convention through negotiation.
2. Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation within six months shall, at the request of any of them, be referred to arbitration. If the Contracting Parties have not agreed on how the arbitration proceedings within six months from the date of the request, each of them may refer the dispute to the International Court of justice by application in conformity with the Statute of the Court of Justice.
3. A Contracting State may, when signing, ratifying, accepting, approving or acceding to this Convention, declare that it does not consider itself bound by paragraph 2 of this article. Other States parties shall not be bound by paragraph 2 in relation to States parties which have made such a declaration.
4. A Contracting State which has made a declaration in accordance with paragraph 3 of this article may at any time withdraw it by a notification to the Secretary-General of the United Nations.
Article 28
Signature
This Convention shall be open for signature by all States until 17 January 2007, at United Nations Headquarters in New York.
Article 29
Ratification, acceptance, approval and accession
1. this Convention shall be subject to ratification, acceptance or approval.
2. this Convention shall be open for accession by all States.
3. The instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General of the United Nations.
Article 30
Date of entry into force
1. This Convention shall enter into force on the thirtieth day after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
2. For a State which ratifies, accepts, approves or accedes to this Convention after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after the deposit of such a State, its instrument of ratification, acceptance, approval or accession.
Article 31
Termination
1. A Contracting State may denounce this Convention by written notification to the Secretary-General of the United Nations.
2. denunciation shall take effect one year after the date on which the Secretary-General of the United Nations received it. The Convention shall continue to apply to each question about the immunity from jurisdiction of States or their property arising in a proceeding instituted against a State before a Court of another State prior to the date on which denunciation takes effect for any of the States concerned.
3. The denunciation shall not in any way affect the obligation of a Contracting State to fulfill the obligations of this Convention which it is bound by international law independently of the Convention.
Article 32
Depositary and notifications
1. The Secretary-General of the United Nations is designated as the depositary of this Convention.
2. In its capacity as the depositary of this Convention, the Secretary-General of the United Nations shall inform all States of:
(a) signatures of this Convention and the deposit of instruments of ratification, acceptance, approval or accession and of notifications of denunciation pursuant to articles 29 and 31;
(b) the date on which this Convention enters into force in accordance with article 30;
(c) documents, notifications and communications relating to the Convention.
Article 33
Authentic texts
This Convention, Arabic, English, French, Chinese, Russian and Spanish texts are equally authentic.
In witness whereof the undersigned, being duly authorised by their respective Governments, have signed this Convention, opened for signature at United Nations Headquarters in New York on 17 January 2005.
Annex to the Convention
Explanations for some of the provisions of the Convention
The purpose of this annex is to determine how these specified
the provisions are to be understood.
To article 10
The term "immunity" in article 10 is to be understood in the full context of the Convention.
Article 10 paragraph 3 is without prejudice to the question of the "corporate veil", questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid to fulfill a requirement, or other related issues.
To article 11
The reference in article 11 paragraph 2 (d) to the employer's State "security interests" means in the first instance, national security and the security of diplomatic missions and consular posts.
All persons referred to in article 41 of the 1961 Vienna Convention on diplomatic relations and article 55 of the 1963 Vienna Convention on consular relations is bound to respect the host country's laws and regulations, including its labour legislation. At the same time, the host Member State in accordance with article 38 of the 1961 Vienna Convention on diplomatic relations and article 71 of the 1963 Vienna Convention on consular relations required to exercise its jurisdiction in such a way that the performance of the tasks of the mission or consular post is not unnecessarily impeded.
To articles 13 and 14
The expression "fixing," as used in these articles not only observation or control of the presence of the protected rights but also evaluation or appreciation of these rights including their content, scope and extent.
To article 17
The expression "commercial transaction" includes investment.
To article 19
The expression "entity" in littera (c) refers to a State as an independent legal entity, a State in a federal State, a State Government body, a subdivision or other entity which has the status of an independent legal entity.
The words "property that has a connection with the device" in littera (c) must be interpreted as meaning that broader than ownership or possession.
Article 19 does not affect the question of the "corporate veil", questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid to fulfill a requirement, or other related issues.
