The doctrine and typesof jurisdictional immunity of state and its property

Abstract

Since 1992, Mongolia started to establish a regime respecting democracy, human rights and freedoms, recognizing all forms of private and public property, competitive market economy relations, which substantially changed previous centralized planned economy, class based society structure, political and ideological regime with domination of one party rule. As transfer from one regime to another regime continued, this transfer was divided into beginning, middle and transitional periods, during which state made reformation, renovation in all spheres of its life. The Constitution of Mongolia states that State shall recognize all forms of public and private property and protect property rights by law. Land, its soil, forest, water, animals, plants and other natural resources shall be under power of peoples and state protection in Mongolia. All lands, except lands owned by citizens of Mongolia, its soil, natural resources, forest and water resources, animals shall be state property. In accordance with international private law doctrine, state can participate in international private law relations as sovereign subject representing public interest (jure imperii) and economic subject representing private interests (jure gestionis). First relation is established between international law subjects as states, nations and international organizations, thus regulated by international public law norms (jus publicum). The second one can be relations between state from one side and economic entity from the other side or relations between foreign legal persons and private individuals (jus privatum)) which is regulated by private international law. Hence state exercises it power not only entering into relations with other states but also with private individuals and legal persons, thus becomes subject of civil circulation. Disputes between international law subjects are resolved in compliance with article 33 of UN Charter by UN”s International Court of Justice. Disputes arising from legal relations between these subjects can be reviewed also by competent national courts or international arbitrations. Legal status of state in international private law relations is different from status of citizens and legal persons. The specific status of state is conditioned by state’s specific role and its representation of state’s high power. When a State participates in property related international private law relations it has a very special role. This role is determined by several subjective and objective reasons. For instance state’s role is defined by its population, political system and economic situation. Although in relations of international law, states as sovereign subjects of international law shall have equal rights. In our opinion if Mongolian state participates as one party in following relations it shall be regulated not by international public law, but by international private law: ∙Loan relations (Mongolia as lender can conclude loan agreements with credit institutions, foreign state and international financial organizations) ∙Loan money by issuing securities on behalf of Mongolia ∙Loan and issue loan guarantee (Mongolia can conclude agreement on state guarantee. State guarantee is regulated by state budget law). ∙Acquiring and leasing land abroad ∙Selling and renting own land, building facilities located abroad ∙Conclude concession agreement with foreign investors ∙Conclude agreements on product share, agreement on priority investment rights to oil exploitation and production plants ∙Service agreements for state purposes ∙Conclude agreements on sale and purchase of goods and services ∙Inherit properties of Mongolian citizens deceased abroad. The participation of state in international relations can be divided into types: 1. Inter-state relations as well as state and international organizations relations on (economic, scientific-technical cooperation, loan agreements). This relation is regulated by international public law norms 2. From one side state and from the other state foreign legal person, international non-governmental or economic organization, individual. The subject of this research is this type of relations. One of the main points for any state which participates in international private relations is to determine which jurisdictional immunity theory or concept shall guide it, as well as to use correctly forms and types of immunity. Thus this research shall cover issues on participation of state in international private relations, the doctrines, concepts and types of state jurisdictional immunity.