Central banks and the doctrine of sovereign immunity
University of British Columbia
Master of Laws - LLM
Central banks engage in a multiplicity of activities. Their current roles are historically determined, in that each central bank came into being at a certain stage of its country's development and has exercised its functions consistently with its nation's development objectives. Consequently, central bank functions vary in degree and from place to place. However, despite the different conditions under which they operate, most central banks exhibit a tendency to conform to an almost identical pattern, particularly in respect of those practices and principles developed by the Bank of England, which came to be accepted as traditional central bank functions. This thesis takes up the traditional central bank functions and compares them with the new and expanding roles of central banks in the developing world. The tool for illuminating this review is the important issue of government immunity. As agents of their governments, central banks sometimes breach their contractual obligations and then the issue of immunity comes up. In determining the immunity of foreign states, their agents and instrumentalities, the courts characterize their activities as either private or public acts. This process of characterization has proved difficult in its application to central bank activities. This is because there is no uniform central bank function. Consequently, it is difficult to determine when a central bank is performing a central bank function. The restrictive immunity approach presupposes that central bank functions could easily be characterized as either commercial or central bank functions. However, a contrary view is presented in this thesis. This thesis takes the position that central bank activities are not uniform and therefore cannot be subject to a general theory of restrictive immunity. A comparative approach is adopted in analysing the different evolutionary patterns of central bank development, the scope of protection that central banks enjoy under the current law in sovereign immunity in the U.S., Canada, the U.K. and other international conventions. The study ends with an appraisal of the scope of central bank immunity and the problems associated with the characterization process and concludes that in the absence of uniform central bank functions, and an agreement on the proper sphere of governmental activity, the restrictive immunity approach is inadequate for the resolution of central bank immunity issues. Consequently a programme of bilateral treaties is suggested as a better alternative.
Banks and banking, Central; Banks and banking, Central -- Developing countries; Government liability
Law, Peter A. Allard School of