Foreign State Immunity: A Private International Law Analysis

Abstract

In 1999 the present author proposed that the doctrine of foreign state or sovereign immunity be abolished and replaced by an approach that relies exclusively upon the doctrines of personal jurisdiction and forum non conveniens. Such an approach was said to be more flexible and even handed in acknowledging the interests of both claimants and defendant foreign states in the litigation process. This paper reviews the position after almost 20 years and finds that the case for removal of immunity remains compelling. Recent developments such as the emergence of the doctrine of jurisdiction by necessity and the increased influence of article 6(1) of the European Convention on Human Rights show that the right to access to justice is more important than ever. Foreign state immunity should no longer be a barrier to the vindication of rights by claimants.

Keywords: foreign state, private international law

JEL Classification: K00, K33