The Commercial Exceptions to Foreign State Immunity

45(3) Federal Law Review 445, 2017

24 Pages Posted: 25 Mar 2020

See all articles by Michael Douglas

Michael Douglas

The University of Western Australia Law School

Claudia Carr

Curtin University

Date Written: 2017

Abstract

The Foreign States Immunities Act 1985 (Cth) provides that foreign states are immune to the jurisdiction of Australian courts, and that their property is immune from execution. Those immunities are subject to important ‘commercial exceptions’. First, foreign states are not immune in Australian proceedings insofar as they concern a ‘commercial transaction’. Second, foreign states are not immune from execution in respect of ‘commercial property’. The distinction between the commercial and the non-commercial may be difficult to pin down. With reference to recent case law, including the High Court’s decision in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31, this article aims to articulate the scope of the commercial exceptions. It is argued that the scope of the commercial transaction exception is uncertain, and depends on courts’ approach to the task of characterization. It is also argued that the commercial property exception is undesirably narrow, and will present a recurring impediment to the vindication of private rights.

Keywords: Foreign State Immunity, International Law, Commercial Exceptions, Private International Law

Suggested Citation

Douglas, Michael and Carr, Claudia, The Commercial Exceptions to Foreign State Immunity (2017). 45(3) Federal Law Review 445, 2017. Available at SSRN: https://ssrn.com/abstract=3546363

Michael Douglas (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

HOME PAGE: http://www.web.uwa.edu.au/person/michael.c.douglas

Claudia Carr

Curtin University ( email )

Kent Street
Bentley
Perth, WA WA 6102
Australia

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