Sovereign immunity and transnational arbitration
University of British Columbia
Master of Laws - LLM
State participation in the arbitration of transnational commercial disputes is steadily increasing. It is estimated that arbitration of state contract disputes presently constitute one quarter of the disputes submitted to ICC arbitration. Where a state party is involved in an arbitration, the sovereign immunity doctrine - which in some cases exempts foreign states from the jurisdiction of municipal courts - may have adverse effect on the arbitration process. The thesis explores the impact of the immunity doctrine on the arbitration of state contract disputes. State practice in selected jurisdictions is used to illustrate the methods adopted in an effort to mitigate the impact of the immunity doctrine on commercial arbitration. In this respect, focus is placed on both jurisdictional immunity and immunity from execution. The thesis concludes that the private party may avoid unnecessary litigation by requiring the state party to expressly waive its immunity both during the recognition and enforcement stages. The waiver should be included in the arbitration agreement.
Law, Peter A. Allard School of