Constitutional Law: Self-Incrimination: Effect of State Immunity Statute in Federal Court

1932 ◽  
Vol 30 (3) ◽  
pp. 461
Keyword(s):  
Constitutional Law ◽  
Federal Court ◽  
State Immunity

Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l.

2021 ◽  
Vol 196 ◽  
pp. 593-628
Keyword(s):  
Federal Court ◽  
Vienna Convention ◽  
International Arbitration ◽  
Content Type ◽  
Arbitral Award ◽  
State Immunity ◽  
Foreign State ◽  
Municipal Law ◽  
Recognition And Enforcement ◽  
The Law

593Arbitration — Arbitration award — International Centre for Settlement of Investment Disputes (“ICSID”) — ICSID Convention, 1965 — Article 54 — Recognition and enforcement of award — Distinction between enforcement and recognition proceedings — International Arbitration Act 1974 (Cth) implementing ICSID Convention in domestic law — Whether ICSID Convention excluding any claim for foreign state immunity in proceedings for recognition and enforcement of an arbitral award — Meaning of recognition and enforcement in Article 54 and execution in Article 55 of ICSID Convention — Whether Spain’s accession to ICSID Convention constituting a submission to jurisdiction of Federal Court of AustraliaRelationship of international law and municipal law — Treaties — ICSID Convention, 1965 — International Arbitration Act 1974 (Cth) — Foreign States Immunities Act 1985 (Cth) — Whether Spain entitled to plead foreign State immunity — Whether ICSID Convention excluding any claim for foreign state immunity in proceedings for recognition and enforcement of an arbitral award — Meaning of recognition and enforcement in Article 54 and execution in Article 55 of ICSID Convention — Whether Spain’s accession to ICSID Convention constituting a submission to jurisdiction of Federal Court of AustraliaTreaties — Interpretation — ICSID Convention, 1965 — Articles 54 and 55 — Meaning of recognition and enforcement in Article 54 and execution in Article 55 of ICSID Convention — Vienna Convention on the Law of Treaties, 1969 — Whether ICSID Convention excluding any claim for foreign state immunity in proceedings for recognition and enforcement of an arbitral award — Whether Spain’s accession to ICSID Convention constituting a submission to jurisdiction of Federal Court of AustraliaState immunity — Foreign States Immunities Act 1985 (Cth) — Exceptions to immunity — Exception where foreign State agreeing by treaty to submit to jurisdiction — Spain acceding to ICSID Convention — Whether constituting submission to jurisdiction of Federal Court of Australia — Whether Spain entitled to plead foreign State immunity — Whether ICSID Convention excluding any claim for foreign State immunity in proceedings for recognition and enforcement of an arbitral award594Jurisdiction — State immunity — Foreign States Immunities Act 1985 (Cth) — Spain acceding to ICSID Convention — Whether constituting submission to jurisdiction of Federal Court of Australia — Whether Spain entitled to plead foreign State immunity — Whether Federal Court of Australia having jurisdiction — The law of Australia

scholarly journals A Dangerous Last Line of Defence: Or, A Roman Court Goes Lutheran

2021 ◽  
pp. 237-257
Author(s):  
Christian J. Tams
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Constitutional Law ◽  
Constitutional Court ◽  
State Immunity ◽  
Constructive Dialogue ◽  
Directive Function

AbstractThe chapter addresses questions of international law implicated by Sentenza 238/2014. It begins by revisiting the longstanding debate about state immunity and its limits, arguing that notwithstanding decades of discussion, a ‘grave breaches’ exception has never had more than marginal support in positive international law. Against that background, it comes as no surprise that the Italian Constitutional Court (ItCC), in Judgment 238/2014, did not assert the existence of a grave breaches exception as a matter of international law. Instead, the ItCC relied on what might be termed a ‘foreign relations law’ approach, holding that Italian constitutional law required it not to give domestic effect to the international law of state immunity. This ‘foreign relations law’ approach offers a last line of defence for those seeking to limit the reach of rules of state immunity. As is set out in this chapter, it is an effective line of defence because international law does not ‘by itself, possess the force to amend or repeal internationally unlawful domestic (…) acts’ (Antonio Cassese). At the same time it is a dangerous line, as it risks weakening international law generally and not just in the area of immunity. This chapter suggests that, when read as a foreign relations law decision, Sentenza 238/2014 is not as such unusual: it is one of many decisions accepting some form of ‘constitutional override’ that limits the effects of international law within domestic legal orders. However, Sentenza 238/2014 stands out because—unlike other decisions—it seems to refuse international law any place in the construction of constitutional law: in the ItCC’s ‘separatist treatment’ (Kolb) international law is denied a directive function (‘Orientierungswirkung’); it is not factored into the equation. Seen in that light, Sentenza 238/2014 (counter-intuitively, for a ‘Roman’ decision) has a ‘Lutheran’ quality; it is informed by a stubborn ‘here I stand, I can do no other’ aspect, which limits the potential for a constructive dialogue between domestic and international judiciaries.

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