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Sovereign immunity: An explainer

SINGAPORE — Sovereign immunity is a legal doctrine recognised internationally stating that a sovereign state is exempt from the jurisdiction of foreign national courts, in respect of its sovereign activities or property.

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SINGAPORE — Sovereign immunity is a legal doctrine recognised internationally stating that a sovereign state is exempt from the jurisdiction of foreign national courts, in respect of its sovereign activities or property.

This means a sovereign state cannot be sued before the courts of another sovereign state unless it decides to waive its immunity. Its assets are also not liable to seizure and forfeiture.

Associate Professor of Law Eugene Tan from the Singapore Management University said: “The doctrine of state immunity is founded on the equality, independence and dignity of states; that an equal has no authority over another equal.”

Diplomatic activity and assets is one well-known example of a sovereign act that enjoys immunity, cited Assoc Prof Tan.

A sovereign state can invoke sovereign immunity at any time when its sovereign activities are impeded or when government property is seized or detained. This can be done through an administrative mechanism where the host state may ask its domestic courts to determine if state immunity applied.

Assoc Prof Tan said: “(This) is more a procedural matter rather than a denial of the existence of the substantive concept of state immunity by the host state.”

Professor Tan Cheng Han, who is chairman of the Centre of Law & Business at the National University of Singapore’s Faculty of Law, added: “As the Terrex (Infantry Carrier Vehicles) ICVs are clearly the property of the Singapore government, if the doctrine of sovereign immunity is applied, the outcome in principle should be the release of the vehicles.”

Hong Kong courts have issued decisions that recognise the doctrine of sovereign immunity, said Prof Tan.

In 2011, for instance, the Hong Kong Court of Final Appeal ruled that the Special Administrative Region could not have a doctrine of state immunity that was inconsistent with that of the People’s Republic of China — the latter adheres to absolute immunity.

Its ruling came when Yugoslavian company Energoinvest DD assigned FG Hemisphere Associates to claim an arbitral award for outstanding loans to the Democratic Republic of the Congo and state-owned electricity company Societe Nationale d’ Electricite to build energy infrastructure.

FG Hemisphere had sought to collect the US$221 million in entry fees to be paid by China Railway Group and several of its subsidiaries to a state-owned Congolese mining company under a joint venture agreement.

Judges of the Hong Court Court of Appeal had ruled that the Democratic Republic of the Congo had no immunity in commercial proceedings, noting that had the prevailing state immunity been absolute, the African nation had waived this immunity.

But the Court of Final Appeal said the Democratic Republic of the Congo had not waived its immunity before the courts of Hong Kong. The territory must also adhere to the doctrine of absolute immunity, as is the case in China.

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