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Peter M Muriithi - One of the best experts on this subject based on the ideXlab platform.
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enunciating the effect of the doctrine of Sovereign Immunity of states on international arbitration
Social Science Research Network, 2021Co-Authors: Edwin Kimani, Peter M MuriithiAbstract:In the 21st Century States continue to be one of the main players in international business transactions. The onerous responsibility of states to provide goods and services to their citizens means that, they are by default involved in enormous commercial transactions and investment ventures. In several of these business transactions involving states for example; states and states, states and organizations, states and private individuals/companies, states overtime have adopted international arbitration as their preferred mode of dispute resolution. This is manifested especially in investment agreements and international commercial transactions involving states. However, under public international law (international personality of states) states enjoy Sovereign Immunity as international legal persons. Sovereign Immunity is a legal doctrine by which the Sovereign or the state cannot, commit a legal wrong and is immune from civil suit or criminal prosecution. This has raised the concern as to the extent to which a State involved in international arbitration can invoke the doctrine of Sovereign Immunity and its impact on international arbitration. Inquisitively this paper asks; Is the doctrine of Sovereign Immunity a threat to international arbitration? In answering these questions, this paper interrogates how various International Conventions that offer a legal framework for international arbitration have addressed these seminal issues. For example; The Convention on the Settlement of Investment Disputes between States and Nationals that was created to offer a mechanism for resolving investor state disputes.
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reconciling states quest to uphold their Sovereignty through the doctrine of Sovereign Immunity and the need for effective settlement of investor state disputes under the icsid convention
Social Science Research Network, 2019Co-Authors: Peter M MuriithiAbstract:The motivation behind this paper is to analyze how states pursuit to maintain their Sovereignty through the doctrine of Sovereign Immunity and the need to have an effective mode of settlement of the investor-state dispute has been balanced under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter ICSID Convention). In doing so, the author shall do an analysis on the brief history behind the creation of the ICSID Convention, International Centre for Settlement of Investment Disputes(hereinafter ICSID) jurisdiction over investor-state disputes; analyze what constitutes the doctrine of Sovereign Immunity; enunciate what constitutes investor-state disputes settlement; and, analyze the seminal provisions of ICSID Convention that seek to uphold states Sovereignty through the doctrine of Sovereign Immunity and also ensure effective settlement of investor-state disputes resolution under the ICSID Convention. Lastly, the paper shall give a conclusion on whether the Convention has succeeded in maintaining this delicate yet vital balance.
David Mcnamee - One of the best experts on this subject based on the ideXlab platform.
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Sovereign and state a democratic theory of Sovereign Immunity
Texas Law Review, 2015Co-Authors: Corey Brettschneider, David McnameeAbstract:Sovereign Immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular Sovereignty and democratic self-rule. It is hardly surprising, then, that Sovereign Immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions-to revisit the fundamental question of Sovereignty in a democracy. In this Article, we aim to reconcile the doctrine of Sovereign Immunity with the Constitution's core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic Sovereign. This includes the authority to make what we will call "Sovereign mistakes." For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the Sovereign power of the purse. But a necessary condition for democratic legitimacy is that the Sovereign must respect citizens' fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic Sovereign, and it does not enjoy Immunity from suit. The mantle of democratic Sovereignty passes to the citizen-plaintiff instead. Part I considers and rejects the all-or-nothing approaches to Sovereign Immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of Sovereign Immunity to breathe new life into the doctrine-providing a normative justification for Immunity where it lies while also carving out its limits.IntroductionFew areas of doctrine have sown as much confusion over the past two centuries as the Supreme Court's Sovereign Immunity jurisprudence.1 And today it appears to occupy a kind of twilight zone in constitutional theory. Its defenders, who tend towards conservative originalism, invoke a broad principle of Sovereign dignity that finds no home in the constitutional text.2 Its liberal detractors, who favor expansive interpretations of rights and powers under the Constitution, instead call for a narrow reading of the Eleventh Amendment in isolation.3 We argue that much of this confusion stems from a failure to appreciate the theoretical question at the core of the doctrine: how can we reconcile it with democracy?What does it mean to say that the Sovereign is immune from suit in a system of popular Sovereignty? The answer to this question cannot rest in some excursion to the doctrine's historical and monarchical roots. But neither can it be wholesale rejection of the doctrine-a system of popular Sovereignty is not a system that lacks Sovereignty altogether. To solve this apparent morass, we offer a democratic account of Sovereignty, one that both registers the importance of collective decision making and respects the fundamental rights of citizens. We therefore tie the seemingly confused doctrine of Sovereign Immunity to the more generalized democratic ambitions of the Constitution as a whole. We begin with the fundamental question at the heart of Sovereign Immunity: when may citizens sue a democratic state? Consider the following cases:* A prison guard sexually assaults an inmate, who then sues the federal government as his employer.4* A state college bookstore receives preferential transfers from a debtor who has filed for bankruptcy, and the court-appointed trustee sues to recover them to distribute them fairly.5* A federal statute requires states to negotiate with Native American tribes over the operation of gaming facilities.6 One tribe sues the State of Florida for breach of this duty, seeking to compel negotiations.7* After finding a pattern of racial segregation, a federal court orders the Governor of Michigan to fund remedial education programs as part of the desegregation decree.8These cases trace just a few of the many wrinkles in the law of Sovereign Immunity. …
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Sovereign and state a democratic theory of Sovereign Immunity
2014Co-Authors: Corey Brettschneider, David McnameeAbstract:Sovereign Immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular Sovereignty and democratic self-rule. It is hardly surprising, then, that Sovereign Immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions — to revisit the fundamental question of Sovereignty in a democracy. In this paper, we aim to reconcile the doctrine of Sovereign Immunity with the Constitution’s core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic Sovereign. This includes the authority to make what we will call “Sovereign mistakes.” For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the Sovereign power of the purse. But a necessary condition for democratic legitimacy is that the Sovereign must respect citizens’ fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic Sovereign, and it does not enjoy Immunity from suit. The mantle of democratic Sovereignty passes to the citizen-plaintiff, instead. Part I considers and rejects the all-or-nothing approaches to Sovereign Immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of Sovereign Immunity to breathe new life into the doctrine — providing a normative justification for Immunity where it lies while also carving out its limits.
Michael Bloom - One of the best experts on this subject based on the ideXlab platform.
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taking from states Sovereign Immunity s preclusive effect on private takings of state land
2020Co-Authors: Jennifer Danis, Michael BloomAbstract:The core of a state is its physical presence and dominion over its land. States are now battling to maintain dignity to preserve their Sovereign functions as traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, now threaten state Sovereignty by taking state property without state consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and take a state house without recourse for the state. However, because takings must be effectuated through the court system, federal courts still remain as a bulwark against improper intrusion into core Sovereign realms. Where the private company seeks to exercise the power and condemn land owned by a state, how should courts treat a defense of Sovereign Immunity? This article traces the independent but overlapping histories of state Sovereign Immunity and federal eminent domain power. We argue that under current state Sovereign Immunity doctrine, within the limited instances in which Congress has delegated its eminent domain power to a private actor for a specified public use and just compensation, the private actor is nonetheless prohibited from wielding that power to take state lands, absent state consent. Using both an analytical and historical analysis, this article ultimately concludes that the independent state power of Sovereign Immunity is not abrogated or waived by such delegations of eminent domain, and therefore private parties are unable to effectuate the federal right granted to them through a private delegation of eminent domain power. Although intertwined, the separate and distinct history and evolution of delegated eminent domain and Sovereign Immunity doctrine confirms that where they collide, state Sovereign Immunity is still supreme.
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taking from states Sovereign Immunity s preclusive effect on private takings of state land
Social Science Research Network, 2020Co-Authors: Jennifer Danis, Michael BloomAbstract:The core of a state is its physical presence and dominion over its land. States are now battling to maintain their dignity as Sovereigns, while traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, threaten state Sovereignty by attempting to take state property without consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and take a state capitol—and the state would have no recourse to respond. However, because takings must be effectuated through courts, federal courts remain as a bulwark against improper intrusion into core Sovereign realms. Where the private company seeks to exercise the power of eminent domain and condemn state-owned land, how should courts evaluate a state’s defense of Sovereign Immunity under the Eleventh Amendment? This Article traces the independent but overlapping histories of state Sovereign Immunity and federal eminent domain power. We argue that under current state Sovereign Immunity doctrine, within the limited instances in which Congress has delegated its eminent domain power to a private actor for a specified public use and just compensation, the private actor is nonetheless prohibited from wielding that power to take state lands, absent state consent. This Article ultimately concludes that a delegation of eminent domain authority to a private actor does not abrogate or waive the independent state power of Sovereign Immunity, therefore rendering private parties unable to exercise eminent domain to take state property. Although intertwined, the separate and distinct history and evolution of delegated eminent domain and Sovereign Immunity doctrines confirm that where they collide, state Sovereign Immunity is still supreme.
Mark C Weidemaier - One of the best experts on this subject based on the ideXlab platform.
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differing perceptions market practice and the evolution of foreign Sovereign Immunity
Journal of Law & Social Inquiry, 2017Co-Authors: Mark C Weidemaier, Mitu G GulatiAbstract:The 20th century witnessed a transformative, “tectonic” shift in international law, from “absolute” to “restrictive” theories of Sovereign Immunity. As conventionally understood, however, this dramatic transformation represented only a shift in the default rule. Under absolute Immunity, national courts could not hear lawsuits and enforce judgments against a foreign Sovereign without its consent. Under restrictive Immunity, foreign Sovereigns were presumptively not immune when they engaged in commercial acts. We demonstrate that market practices undermine this conventional understanding. Using an extensive, two-century data set of contracts between foreign governments and private creditors, we show that contracting parties have long treated absolute Immunity as akin to a mandatory rule, which they could not reliably change by contract. By contrast, we show that the Foreign Sovereign Immunities Act in the U.S. and the State Immunities Act 1978 in the U.K. — two statutes largely overlooked by international law scholarship — fundamentally reordered a global market for contracts. We explore why the conventional narrative, which relies on analysis of traditional legal materials, is at such odds with the “law on the ground.”
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Sovereign Immunity and Sovereign debt
University of Illinois Law Review, 2014Co-Authors: Mark C WeidemaierAbstract:The law of foreign Sovereign Immunity changed dramatically over the course of the 20th century. The United States abandoned the doctrine of absolute Immunity and opened its courts to lawsuits by private claimants against foreign governments. It also pursued a range of other policies designed to shift such disputes into litigation or arbitration (and thus relieve political actors of pressure to intervene on behalf of disappointed creditors). This Article uses a unique data set of Sovereign bonds to explore how international financial contracts responded to these legal and policy initiatives. The Article makes three novel empirical and analytical contributions. The first two relate to the law of Sovereign Immunity and to the role of legal enforcement in the Sovereign debt markets. First, although the decision to abandon the absolute Immunity rule was a major legal and policy shift, this article demonstrates that investors dismissed their new enforcement rights as irrelevant to the prospect of repayment. Second, the ongoing Eurozone debt crisis has prompted fears that private investors will use litigation to prevent debt restructurings necessary to revive European economies. This Article shows that such fears may be overblown and, in the process, informs the broader empirical and theoretical debate about the role of legal enforcement in the Sovereign debt markets. Finally, the Article exposes a gap in contract theory as it pertains to boilerplate contracts such as Sovereign bonds. Boilerplate presents a puzzle of intense interest to contracts scholars. It is drafted to serve the interests of sophisticated, well-resourced players, yet it often remains static in the face of new risks. To explain this inertia, contract theory posits that major shifts in boilerplate financial contracts require a financial crisis or other exogenous shock that substantially alters investors’ risk perceptions. This Article, however, demonstrates that the Foreign Sovereign Immunities Act of 1976 prompted a major shift in contracting practices despite investors’ continued indifference
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Sovereign Immunity and Sovereign debt
Social Science Research Network, 2012Co-Authors: Mark C WeidemaierAbstract:The law of foreign Sovereign Immunity changed dramatically over the course of the 20th century. The United States abandoned the doctrine of absolute Immunity and opened its courts to lawsuits by private claimants against foreign governments and officials. It also pursued a range of other policies designed to shift such disputes into litigation or arbitration (and thus relieve political actors of pressure to intervene on behalf of disappointed creditors). This article explores how international financial contracts responded to these legal and policy initiatives and presents findings with implications for our understanding of Sovereign Immunity law, for debates about the role of litigation in the current financial crisis, and for contract theory.First, although the decision to abandon the doctrine of absolute Immunity was a major legal and policy shift - one that has rightly captured the attention of legal scholars - it had little practical significance for investors. Indeed, investors seemingly dismissed these developments as irrelevant to their prospects for enforcing the government’s promise to pay. Second, and relatedly, worries that litigation may disrupt efforts to restructure government debt may be overblown, especially to the extent these fears center around the ability of creditors to enforce judgments through seizure of Sovereign assets. The findings presented here suggest that such fears are overstated and lend support to theories that discount the relevance of legal enforcement in the Sovereign debt markets. Finally, contract theory posits that Sovereign bonds and other boilerplate financial contracts will rarely change in the absence of a financial crisis or other exogenous shock. This article, however, demonstrates that the Foreign Sovereign Immunities Act of 1976 prompted a large but seemingly symbolic shift in contracting practices, as bond contracts adjusted to incorporate largely-ineffectual Sovereign Immunity waivers. The episode suggests that contract theory should recognize that a wider range of forces may prompt standardized contracts to change.
Alexis Blane - One of the best experts on this subject based on the ideXlab platform.
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Sovereign Immunity as a bar to the execution of international arbitral awards
Social Science Research Network, 2009Co-Authors: Alexis BlaneAbstract:International arbitration is an increasingly popular way to settle disputes between parties of different nationalities and a particularly valuable tool for private parties engaging in commercial transactions with states. The reasons for preferring arbitration include the ability to choose the dispute settlement forum, the procedural strictures of judicial settlement, and the perceived tendency of national courts to favor their own investors. Whatever their reasons for choosing arbitration, parties who do so believe that the current network of multilateral treaties and national laws render the awards arising out of arbitration enforceable and executable in multiple jurisdictions. This potential for enforcement in multiple jurisdictions is valuable because it allows the prevailing party to collect on its award and, when it cannot, to bring judicial pressure to bear in order to compel compensation. It is the promise of such transportable execution which may be arbitration’s greatest appeal. However, this Note argues that this perception may be fatally flawed. When losing state parties do resist award enforcement, the domestic law of Sovereign Immunity provides a near-absolute bar to attempts to enforce and execute those awards against the states.Enforcement of arbitral awards by national courts is central to the international arbitration regime’s protections. However, there remains an important loophole in the provisions for execution of arbitral awards, even those that are enforceable: Claims of Sovereign Immunity. While the past decades have seen a shift in the doctrine of Sovereign Immunity from absolute to restrictive, claims of Sovereign Immunity remain available to states brought before the courts of another state. The protection provided by the arbitration agreement is rendered illusory if the state against which execution is sought can defend against enforcement of the award through claims of Sovereign Immunity. The investor, having prevailed in arbitration, will be left with an award that cannot be satisfied.This Note begins by examining the law that governs the enforcement and execution of international arbitration awards and the domestic law of Sovereign Immunity in Part II. In Part III, case studies from a number of jurisdictions are presented in order to demonstrate the problems that investors face when a state claims Sovereign Immunity to avoid paying an award. Part IV then explores the regime of Bilateral Investment Treaties (BITs), a rapidly expanding practice by which states form Sovereign agreements that permit their national investors to bring disputes against the signatory Sovereign in arbitration. For reasons that this Note examines, concerns about Sovereign Immunity may be particularly problematic in the BIT context. The BIT context is thus a lens through which the costs to both states and the international trade regime that arise from refusals to enforce such awards become apparent. Part VI examines a number of ways that the problems with Sovereign Immunity might be mitigated.
