In accordance with the rules of international law, the legislation and juridical practice of foreign countries, the draft law establishes the limits of the jurisdictional immunity of foreign states and their property. It also specifies situations where a foreign state and its property do not enjoy jurisdictional immunity and provides for the possibility of a foreign state waiving its jurisdictional immunity.
The draft federal law On the Jurisdictional Immunity of a Foreign State and the Property of a Foreign State in the Russian Federation (hereinafter referred to as the draft law) was prepared by the Ministry of Justice pursuant to the Government’s directive and is aimed at regulating the jurisdictional immunity of foreign states in the Russian Federation.
Soviet procedural law was based on the concept of absolute immunity, which assumes that legal claims against a foreign state, the seizure of its property or the mandatory execution of a court ruling issued against it are subject to the consent of the state concerned. Current Russian legislation is also based on the absolute immunity concept.
At the same time, in foreign trade practice, Russia has to waive its immunity.
Following the expansion of foreign economic activity and foreign investment, Russia has signed an array of international treaties on the mutual protection of investment, which provide that investment-related disputes are adjudicated in an international court of commercial arbitration. Under current legislation in a number of foreign countries, this involves the waiving of immunity. By now, dozens of such treaties have been signed. Therefore, Russia’s foreign trade practice, as well as international contractual practice, shows that Russia tends to recognise the jurisdiction of foreign courts, which constitutes an immunity waiver.
The number of lawsuits filed against the Russian Federation and its agencies in foreign courts is steadily increasing, while Russia’s consent for its participation in a legal case is not requested.
This situation is predetermined by the fact that the concept of limited state immunity has been widely adopted in the legislation of foreign countries, whereby a foreign state, its agencies and organisations, as well as their property, do not enjoy immunity with regard to claims arising from the commercial activity of such entities.
This concept underlies the Convention on Jurisdictional Immunities of States and Their Property, which was adopted by the UN on 2 December 2004 and signed by the Russian Federation on 1 December 2006. Corresponding laws have been adopted in a number of foreign states, specifically in the United States, Canada, the UK, Australia, South Africa and Singapore. In other countries, the concept of the limited immunity of a foreign state has not been enacted on the legislative level but is applied in judicial practice (France, Denmark, Norway, Greece, Italy and Germany).
In accordance with the said concept and taking into account the provisions of the Convention on Jurisdictional Immunities of States and Their Property, the draft law establishes the jurisdictional immunity of a foreign state and its property on Russian territory.
The draft law establishes the scope of its legal regulation and the priority of an international treaty, and defines the concepts used in the draft law, in particular “foreign state”, “jurisdictional immunity” and “judicial immunity”, among others.
In accordance with the rules of international law, the legislation and juridical practice of foreign countries, the draft law establishes the limits of the jurisdictional immunity of foreign states and their property. It also specifies situations where a foreign state and its property do not enjoy jurisdictional immunity, and provides for the possibility of a foreign state waiving its jurisdictional immunity.
To ensure the balance between the jurisdictional immunity granted to a foreign state under Russian law and the jurisdictional immunity granted to Russia in a given foreign state, the draft law provides for the limitation of the jurisdictional immunity of a foreign state by a Russian court, based on the principle of reciprocity, if it has been established that the jurisdictional immunity enjoyed by Russia in the foreign state in question is limited to a greater extent than the jurisdictional immunity enjoyed by the same foreign state in Russia.
The draft law is in compliance with the provisions of the Treaty on the Eurasian Economic Union, as well as the provisions of other international treaties signed by the Russian Federation.
The implementation of the provisions of the draft law will require amendments to the Code of Civil Procedure, Code of Arbitration Procedure and Federal Law on Enforcement Procedure, which contain provisions specifying the procedure for the consideration of cases with the participation of foreign entities, including those regarding the recognition and execution of rulings issued by foreign courts.
The draft law is aimed at protecting Russian interests by abandoning the concept of the absolute jurisdictional immunity of foreign states in Russia, which will make it possible to implement measures in response to claims filed against Russian property abroad.
The draft law was considered and approved at a meeting of the Government on 23 July 2015.