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Sovereign Wealth Funds and State Immunity
Series: - Queen Mary Studies in International Law, Volume: 54
Author:
How does the hybrid nature of SWFs affect the application of state immunity to these funds? May an SWF be sued in foreign courts for wrongful acts committed in the course of its investment activities? Can SWF investments be attached by a private creditor seeking to enforce an investment arbitration award against the fund’s state of nationality? This monograph addresses these questions from the perspective of the 2004 New York Convention and six selected jurisdictions (US, UK, France, Germany, Italy, China), with the broader aim of highlighting potential new standards for implementation of the state immunity rule to SWFs.
Marco Argentini, Ph.D. (2023), University of Bologna, is Postdoctoral Fellow and Adjunct Professor in International Law. He is admitted to the Italian Bar.
Acknowledgment
Abbreviations
International and Domestic Documents
Table of Cases
General Introduction
1 Problem Statement
2 Research Question
3 Selected Jurisdictions and Structure
Part 1
swf
s: History, Definitions and Core Elements
Introduction to Part 1
1 The Development of
swf
s as New State Investment Vehicles
1 The Emergence of
swf
s
1.1 Historical Antecedents: The India Companies and the Industrial Revolution (before 1953)
1.2 The Genesis of Commodity and Non-commodity
swf
s (between 1953 and the Mid-1990s)
1.3 The Expansion of
swf
s: The Asian Financial Crisis and the Rise of Crude Oil Price (between the Mid-1990s and 2005)
1.4
swf
s Achieving International Prominence (after 2005)
2 The Quest for a Definition of
swf
s: the Main Scholarly Definitions
2.1 The First Definitions
2.2
swf
s as Government-Managed Entities Seeking Higher Rates of Returns
2.3 Definitions Focusing on
swf
s’ Liability
2.4 Definitions Based on How
swf
s Are Managed
2.5 The Relevance of Funds’ Ownership and Purposes
3 Institutional Attempts to Define and Regulate
swf
s
3.1
imf
Definitions
3.2 The ‘Santiago Principles’
3.3 Other Definitions Provided by International Organizations
4 Differences between
swf
s and Other Cognate Entities
4.1
swf
s and State-Owned Enterprises
4.2
swf
s and Public Pension Funds
4.3
swf
s and International Reserves
2
swf
s’ Core Elements
1 Legal Structure
2 Governance
3 Source of Assets
4 Purpose
4.1 Diplomatic and Political Tool
4.2 National Development Tool
4.3 Stabilisation and Diversification Tool
4.4 Intergenerational Savings Tool
5 Types of Investments
Provisional Conclusions
Part 2
swf
s and Adjudicative Immunity
Introduction to Part 2
3 The
uncsi
as an Attempt to Codify International Law on State Immunity
1 Relevance of the Convention for Development of a Customary Rule
2 Framing of
swf
s into the Notion of ‘State’
3 The Commercial Exception to Adjudicative Immunity
4
swf
s with an Independent Legal Personality and Immunity of the Parent State
4 The Common Law Approach to Adjudicative Immunity: Two Archetypes of Statutory Norms
1 United States
1.1 Pool-of-Assets
swf
s
1.2
swf
s Established with Independent Legal Personality
1.3 The Commercial Exception Under the
fsia
2 United Kingdom
2.1 Qualification of a Pool-of-Assets
swf
as a ‘Department of Government’
2.2 The Commercial Exception Under the
sia
2.3
swf
s Established as Separate Entities
5 The Civil Law Approach to Adjudicative Immunity
1 France
2 Germany
3 Italy
4 China
4.1 Once Upon a Time:
prc
as the Last Bastion of Absolute Immunity
4.2 State Immunity and
swf
s before 2023
4.3 The Current Scenario
Provisional Conclusions
Part 3
swf
s and Immunity from Execution
Introduction to Part 3
6 The 2004 UN Convention
1 Beneficiaries of Immunity from Execution Under the
uncsi
2 Differences between Pre- and Post-judgment Measures. The Commercial Exception
3 Piercing the Corporate Veil according to the
uncsi
7 The US
fsia
and the UK
sia
1 United States
1.1 Post-judgment Attachment: Pool-of-Assets
swf
s
1.2 Post-judgment Attachment:
swf
s Established as Separate Entities
1.3 Pre-judgment Attachment
2 United Kingdom
2.1 Post-judgment Execution. The Commercial Exception
2.2 Pre-judgment Attachment
2.3
swf
s with Separate Legal Personality
8 European Civil Law Jurisdictions: France, Germany and Italy
1 France
1.1 From ‘Eurodif’ to the ‘Sapin 2’ Law
1.2 French Courts’ Decisions on
swf
s’ Property
2 Germany
3 Italy
3.1 Pre-judgment Measures
4 China
4.1 Pre-2023: China’s Traditional Approach towards Immunity from Execution
4.2 Post-2023: China’s Adherence to the Restrictive Doctrine of State Immunity
Provisional Conclusions
Part 4
Immunity of
swf
s Managed by Central Banks
Introduction to Part 4
9 The Umbrella Protection of Central Banks to
swf
s
1
swf
s in Systems Providing for Near-Absolute Protection to Central Bank Assets
1.1 The
uncsi
1.2 United Kingdom
1.3 China
2
swf
s and the ‘Purpose’ Test in Jurisdictions Granting a Milder Protection to Central Banks
2.1 United States
2.2 France
2.3 Germany
3 A Recent Trend to Be Monitored on Denying Immunity to
swf
s Managed by Central Banks:
Stati v. Kazakhstan
Provisional Conclusions
Concluding Remarks: General Trends on
swf
s and State Immunity
Bibliography
Index
Abbreviations
International and Domestic Documents
Table of Cases
General Introduction
1 Problem Statement
2 Research Question
3 Selected Jurisdictions and Structure
Part 1
Introduction to Part 1
1 The Development of
1 The Emergence of
1.1 Historical Antecedents: The India Companies and the Industrial Revolution (before 1953)
1.2 The Genesis of Commodity and Non-commodity
1.3 The Expansion of
1.4
2 The Quest for a Definition of
2.1 The First Definitions
2.2
2.3 Definitions Focusing on
2.4 Definitions Based on How
2.5 The Relevance of Funds’ Ownership and Purposes
3 Institutional Attempts to Define and Regulate
3.1
3.2 The ‘Santiago Principles’
3.3 Other Definitions Provided by International Organizations
4 Differences between
4.1
4.2
4.3
2
1 Legal Structure
2 Governance
3 Source of Assets
4 Purpose
4.1 Diplomatic and Political Tool
4.2 National Development Tool
4.3 Stabilisation and Diversification Tool
4.4 Intergenerational Savings Tool
5 Types of Investments
Provisional Conclusions
Part 2
Introduction to Part 2
3 The
1 Relevance of the Convention for Development of a Customary Rule
2 Framing of
3 The Commercial Exception to Adjudicative Immunity
4
4 The Common Law Approach to Adjudicative Immunity: Two Archetypes of Statutory Norms
1 United States
1.1 Pool-of-Assets
1.2
1.3 The Commercial Exception Under the
2 United Kingdom
2.1 Qualification of a Pool-of-Assets
2.2 The Commercial Exception Under the
2.3
5 The Civil Law Approach to Adjudicative Immunity
1 France
2 Germany
3 Italy
4 China
4.1 Once Upon a Time:
4.2 State Immunity and
4.3 The Current Scenario
Provisional Conclusions
Part 3
Introduction to Part 3
6 The 2004 UN Convention
1 Beneficiaries of Immunity from Execution Under the
2 Differences between Pre- and Post-judgment Measures. The Commercial Exception
3 Piercing the Corporate Veil according to the
7 The US
1 United States
1.1 Post-judgment Attachment: Pool-of-Assets
1.2 Post-judgment Attachment:
1.3 Pre-judgment Attachment
2 United Kingdom
2.1 Post-judgment Execution. The Commercial Exception
2.2 Pre-judgment Attachment
2.3
8 European Civil Law Jurisdictions: France, Germany and Italy
1 France
1.1 From ‘Eurodif’ to the ‘Sapin 2’ Law
1.2 French Courts’ Decisions on
2 Germany
3 Italy
3.1 Pre-judgment Measures
4 China
4.1 Pre-2023: China’s Traditional Approach towards Immunity from Execution
4.2 Post-2023: China’s Adherence to the Restrictive Doctrine of State Immunity
Provisional Conclusions
Part 4
Immunity of
Introduction to Part 4
9 The Umbrella Protection of Central Banks to
1
1.1 The
1.2 United Kingdom
1.3 China
2
2.1 United States
2.2 France
2.3 Germany
3 A Recent Trend to Be Monitored on Denying Immunity to
Provisional Conclusions
Concluding Remarks: General Trends on
Bibliography
Index
The book will be of particular interest to academics in the fields of public international law and international investment law, as well as international law practitioners and the SWF community at large.