The essay discusses judicial jurisdiction over workplace injury claims against a state in the former Soviet Union Countries. Claiming that such cases should be dismissed in foreign jurisdiction, the paper seeks explanation to different approach and different outcomes of workplace injury cases in the courts of the same countries. The essay begins with background information on particularities of unusual workplace injury cases which emerged in connection with important political event - collapse of the USSR. Relevant provisions of domestic and . international law on judicial jurisdiction, their interpretation and application in Commonwealth of Independent States are discussed in this paper. Analyzing provisions and reasons of different decisions, the essay infers the implications from analysis in support of its main claim.

The essay discusses judicial jurisdiction over workplace injury claims against a state in the former Soviet Union Countries. Claiming that such cases should be dismissed in foreign jurisdiction, the paper seeks explanation to different approach and different outcomes of workplace injury cases in the courts of the same countries. The essay begins with background information on particularities of unusual workplace injury cases which emerged in connection with important political event - collapse of the USSR. Relevant provisions of domestic and . international law on judicial jurisdiction, their interpretation and application in Commonwealth of Independent States are discussed in this paper. Analyzing provisions and reasons of different decisions, the essay infers the implications from analysis in support of its main claim.

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archives@tulane.edu / International conventions do not set down rules on state immunity and leave it to national courts to decide the nature and scope of state immunity. The inevitable result of this state-centrist approach is the evolution of divergent views among states on the reach of state immunity. In the early years of international relations, the accepted view was that states enjoyed absolute sovereign immunity and that as a result no state, without its consent, was subject to the national jurisdiction of another state. Gradually many states, mainly through judicial decisions, moved towards a qualified doctrine of immunity enabling a degree of submission by one state to the jurisdiction of another. This restricted view of sovereign immunity was prompted by the changing nature of socio-economic and political circumstances, with states taking an increasingly felt presence in trading and commercial activities. It is generally the developed countries that were eager to embrace the restrictive view of state immunity, which enabled their nationals to press claims against errant foreign states. Naturally, the developing countries tended to favor the absolute doctrine of state immunity, in order to resist claims, however well founded, made against them. Today, most developing countries still insist on absolute state immunity. While not yet codified in an international convention, the doctrine of state immunity has found its way into customary international law. In identifying and interpreting international customary law of state immunity, national courts frequently refer to and follow judicial decisions of foreign jurisdictions. This practice enables states to learn from different legal techniques and criteria that are used in other jurisdictions to demarcate the scope of the doctrine of state immunity. An area where states have reached some common understanding is the enforcement of arbitral awards—imposing measures of constraint against state assets. While judicial enforcement of arbitral awards is the much preferred and most prevalent means of subjecting state assets to seizure or attachment, there are some notable non-judicial remedial measures which may aid the aggrieved investors in satisfying their claims against state parties to a dispute. These non-judicial means of relief rely on the willingness of the investors’ parent state to pursue their cause with the recalcitrant state. The parent state’s willingness is dictated by political considerations in contrast to non political nature of judicial proceedings. It is commonly agreed that an independent judicial process is much preferable to politically motivated non-judicial avenues of relief. As such, attention of judges, scholars and lawmakers must focus on refining judicial processes and building effective enforcement mechanisms. This calls for widely agreed principles of state immunity and a commonly shared enforcement mechanism. Having identified problems arising from a lack of universal agreement on state immunity and the diversity and, more dishearteningly, the inadequacy of forms of enforcement available to an aggrieved claimant, this thesis proposes that the international community must work towards the setting up of a central enforcement agency, a functional model of enforcement. This thesis suggests that the central mechanism of enforcement could be set up through reaching an international treaty or convention or modifying the existing mechanisms. / 1 / Zixin Meng

Thesis (M.P.H.)--University of Michigan, 1946.

Thesis (M.P.H.)--University of Michigan, 1946.

The People’s Republic of China (“China”) claims absolute immunity for itself but embraces a concept of state for immunity purposes that excludes state-owned enterprises (“SOEs”). This position has led to confusion and frustration in international litigation against China and Chinese SOEs, particularly when massive Chinese foreign investments are led by SOEs, including those made under China’s Belt and Road Initiative. Yet, the immunity status of Chinese SOEs is unclear. Against this backdrop, this thesis examines Chinese SOEs’ ability to claim sovereign immunity under the customary international law of restrictive immunity as expressed and built on in the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (“UNCSI”), the 1976 United States Foreign Sovereign Immunities Act (“US FSIA”) and the 1978 United Kingdom State Immunity Act (“UK SIA”). In investigating the immunity status of the 97 SOEs in which the Chinese central government has direct and full/majority ownership, this thesis answers two questions: (1) under what circumstances would these 97 Chinese SOEs be treated as part of the state for immunity purposes under the UNCSI, the US FSIA and the UK SIA; and (2) under what circumstances would these 97 Chinese SOEs attract jurisdictional and execution immunities thereunder. A critical part of this analysis involves developing an understanding of Chinese SOEs’ dual identity as defined by the Chinese political economy. Chinese SOEs’ dual identity has two levels of meaning. First, it reflects the fact that some Chinese SOEs are categorized as commercial SOEs and others are categorized as public welfare SOEs in the current SOE reform. Secondly, commercial Chinese SOEs have a dual identity, i.e., a commercial and a sovereign aspect in their operations. While commercial SOEs’ primary goal is to pursue commercial interests, they also implement the state’s social, political, and economic policy goals. This sovereign aspect—primarily reflected as the sovereign purpose in their commercial transactions—adds complexity, but is necessary, to our assessment of Chinese SOEs’ “state” status and immunity under the customary international law of sovereign immunity. The three regimes studied in this thesis—the UNCSI, the US FSIA, and the UK SIA—not only take distinctive approaches toward the definition of the state, but also to the commercial exceptions to jurisdictional immunity and execution immunity. Their different analytical frameworks take us to different conclusions about Chinese SOEs’ “state” status and immunity in some cases. Under the UNCSI and the UK SIA, in principle, Chinese SOEs are unlikely to acquire “state” status to claim immunity in their commercial capacity, and consequently, unable to attract jurisdictional immunity and execution immunity for their assets as separate entities. But public welfare SOEs and some commercial SOEs can potentially attract jurisdictional immunity and execution immunity for their assets because to the extent that the purposes of their conduct—which are often related to inherently sovereign functions like the military or the public welfare—are considered in the overall context, the nature of the commercial transaction could be converted into a sovereign one. Under the US FSIA, Chinese SOEs—either commercial or public welfare ones—are state agencies/instrumentalities for immunity purposes, thus, have “state” status. But, in contrast with the UNCSI and the UK SIA, Chinese SOEs are less likely to attract jurisdictional immunity for their commercial activities or execution immunity for their assets under the US FSIA because the US statute applies a broad commercial exception that only considers the nature of the conduct in characterizing whether a transaction is a commercial one. This thesis’s investigations and conclusions have commercial, sovereign, and policy implications for Chinese SOEs’ international business transactions, China’s sovereign immunity position, and litigation involving China and Chinese SOEs in jurisdictions where restrictive immunity is upheld. First, in commercial terms, the analysis in this thesis will better enable commercial parties and states that have commercial relations with Chinese SOEs to understand the dual identity of Chinese SOEs defined by the Chinese political economy and understand under what circumstances Chinese SOEs can potentially attract jurisdictional and execution immunities. Second, in sovereign terms, my research enables states to assess their diplomatic and economic relationships with China from a foreign relations law perspective as China asserts absolute immunity in foreign domestic courts. As this thesis suggests, litigation against China and its emanations and execution against their assets in states where restrictive immunity is applied could give rise to sensitive political clashes in light of China’s absolute immunity position. The ongoing pandemic litigation between the State of Missouri and China in the US court is an example. In line with its practice, China refused to appear in this and other similar cases. My thesis work could provide legal researchers and practitioners with a better informed legal perspective on these highly political disputes. Third, in policy terms, my Chapter on China’s sovereign immunity and my findings that some commercial and public welfare SOEs can potentially attract jurisdictional and execution immunities under the UNCSI and the UK SIA provide China some reasons to not only embrace restrictive immunity but to clarify the definition of the state for immunity purposes thereunder. Ratifying the UNCSI, in my view, would allow China’s position to conform to international law on the one hand; and allow China to contribute to the development of the law of sovereign immunity on the other hand.

THE INTERNATIONAL CRIMINAL COURT AND THE HEAD OF THE STATE IMMUNITY The thesis deals with the institute of immunities of the head of the state recognized under the international law and with its applicability before the International Criminal Court (hereinafter referred to as "ICC"). The aim of this thesis is to analyze the conflict between two international legal rules which is the obligation to prosecute and punish perpetrators of crimes under the international law, irrespective of the status of the offender, and the exclusion of heads of the state from the criminal jurisdiction because of the immunity that protects its bearer. According to the Rome Statute (hereinafter referred to as "Statute") which established the ICC its contractual party is obliged to surrender any accused person to the Court even if this person enjoys immunity. However another provision of the Statute says that the request for this surrender could be refused by the party if it broke an obligation which this party has against the state whose national is the accused person. The first chapter outlines the formation and the functioning of the Court. Subsequently, the work deals with theoretical terms such as the head of state, the individual responsibility or the immunity. It provides with the types of immunities a person could enjoy...

A presente tese tem por escopo verificar o surgimento de uma nova exceção à imunidade de jurisdição dos Estados no caso de violação dos direitos humanos.Para chegar a essa conclusão, faz-se a análise e revisão críticas dos principais casos da jurisprudência estrangeira e nacional, de teorias, da Convenção da Basiléia sobre Imunidade de Jurisdição, da Convenção da ONU sobre Imunidade de Jurisdição, das leis internas sobre imunidade de jurisdição dos Estados Unidos, Reino Unido, Austrália e da Argentina.O tema é dividido em quatro partes: na primeira parte, trata-se de noções sobre jurisdição e imunidade de jurisdição. Na segunda, sobre a evolução da imunidade de jurisdição dos Estados. Na terceira, sobre as exceções clássicas à imunidade de jurisdição e, na última, sobre a nova exceção à imunidade de jurisdição no caso de violação dos direitos humanos. / The scope of this thesis is to analyze the emergence of a new exception to the rule of state immunity in the case of human rights violations. To reach this conclusion a survey of the main cases law and theories is done. In addition, the European Convention on State Immunity, the UN Convention on State Immunity, the sovereign immunity acts of the United States, United Kingdom, Australia and Argentina are comparatively examined. This thesis is divided into four parts: in the first part, it deals with notions of jurisdiction and jurisdictional immunity. In the second part, with the evolution of states immunity. In the third part, with the classical exceptions to jurisdictional immunity and in the last with the new exception to the state immunity in the case of human rights violations.

The dissertation focuses on a legal analysis of the most problematic legal issues predetermined by the fact that the State is a party to the arbitration agreement. The dissertation thesis consists of two sections. Firstly, the issue whether the State and legal persons of public law have a right to enter into an arbitration agreement is analysed. The dissertation provides information about trends of legal regulation in various countries and analyses how restrictions of the right to enter into arbitration agreement are applied and qualified in court and arbitration practice as well as by legal scholars. Also, the dissertation thesis takes into consideration relatively new legal representations of international commercial arbitration described by Professor E. Gaillard and their impact on the application of the abovementioned restrictions. In addition, the rationale of the restrictions is questioned in the dissertation. Secondly, the analysis was carried out of State immunity issue in the context of international commercial arbitration: the argumentation of the conclusion that the State does not enjoy immunity in arbitration proceedings is analysed as well as its legal impact on application of State immunity rules in court proceedings related to arbitration and in execution process (when it is sought to apply the measures of constraint against the property of the State in order to secure the execution of a future arbitral award or in order to enforce an arbitration award). / Disertacijoje nagrinėjami du pagrindiniai probleminiai klausimai, kurie dažniausiai pasireiškia arbitraže, kurio viena šalių yra valstybė ar viešosios teisės juridinis asmuo. Disertaciją sudaro du skyriai, iš kurių pirmame yra analizuojamas valstybės bei viešosios teisės juridinių asmenų teisės sudaryti arbitražinį susitarimą problematika, analizuojamos šio klausimo reglamentavimo įvairių pasaulio valstybių įstatymuose tendencijos bei valstybės ir viešosios teisės juridinių asmenų teisės sudaryti arbitražinius susitarimus apribojimų vertinimas teismų bei arbitražo praktikoje bei doktrinoje. Kartu pirmojoje disertacijos dalyje yra pateikiama galima naujai prancūzų profesoriaus E. Gaillard išskirtų požiūrių į tarptautinį komercinį arbitražą įtaka nagrinėjam klausimui, įvertinamas valstybės bei viešosios teisės juridinių asmenų teisės sudaryti arbitražinius susitarimus pagrįstumas. Antroji disertacijos dalis yra skirta valstybės imuniteto klausimams arbitražo kontekste: analizuojama argumentacija, kuri pagrindžia išvadą, jog valstybė neturi imuniteto arbitraže ir atitinkamai šios išvados įtaka valstybės imuniteto taikymui teismo procesuose, susijusiuose su arbitražu, o taip pat ir valstybės turto imuniteto taikymui, kai yra siekiama suvaržyti valstybės turtą, užtikrinant būsimo arbitražo sprendimo vykdymą ar vykdant arbitražo sprendimą.