Analyzing the commercial exception to state immunity for state-owned enterprises

Abstract

The doctrine of State immunity has evolved across time, space and scope, to cover sectors that were traditionally not included. In this evolution, different exceptions to the doctrine have been developed. Different States have enacted specific legislation across the States to regulate its exercise. The efforts to have an international instrument guiding, and creating binding obligations on States in that respect, have not yet materialized as the adopted instrument has not achieved the requisite ratifications for it to gain the force of law. This research specifically examines the application of the commercial exception to the doctrine of State immunity. The study finds that the application of the exception is not consistent across time and geography (and in some instances, with some near-absurdities) and argues for increased ratification of the UN Convention on Jurisdiction of States and their property as the ultimate panacea.