英语论文网

y- SIA. Section 5 of SIA on tortious exception contains very close content to tortious exception of FSIA of USA with an absence of distinction between public and private acts. In this section it is said that “state is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom”. After analyzing of this section it could be found the following requirements to application of this tortious exception.

Firstly, this exception will be applicable only in case if damage or material loss is result of harm to property and life. [8] It means that just pure economic loss or pure immaterial damage will not be sufficient for application of this exception. [9]

Secondly, it is necessary to establish that the act or omission was committed in the UK. According to the terms of this section it is supposed that tortious exception would be applicable even though damage happened outside UK. And it is somehow opposite to the content of the tortious exception of FSIA where it is required both act (omission) and damage to be occurred in USA. As example it could be remembered the Lockerbie incident in which the bomb was placed in the plane outside UK and explored in Scotland. In that case the UK court established sufficient territorial nexus with UK. But as showed follow-up cases it was not always so easy to apply this exception because of the lack of territorial nexus. According to SIA the tort-feasor must be in the territory of UK to establish territorial nexus. [10]

On this example it could be noticed that legal system of SIA of UK have similarities (absence of distinction between public and private acts in torts) with FSIA of USA as these both states are common law states and beside it, location in Europe gave to UK some similarities (not so strict territorial nexus requirement) with legal systems of European states as well. Due to this factor UK could play the role of connecting chain in sharing of state immunity experience between USA and Europe.

After considering some cases it could be assumed that some European courts had made first steps towards denial of traditional distinction between public and private acts in domestic torts by way of simple omitting this question on distinction and looking for another reason of refusal to establish jurisdiction. These steps of European courts could be also explained with influence of the modern immunity instruments, such European Convention on state immunity.

And probably it could be already said that recently we got the first fruit of such influence due to Ferrini vs. Germany case. [11]

According to the background of the mentioned case Mr. Ferrini was deported by German army to work as forced laborer at Kahla in 1944. In 1998 Mr. Ferrini brought a civil claim for compensation of the material and moral injuries suffered by him during his deportation and forced labour. [12]

Mr. Ferrini went with his claim till the Court of Cassation of Italy. He asked the Court of Cassation to set aside the decision of the Court of Appeal on the grounds that the Brussels Convention on Jurisdictional competence in Civil and Commercial Matters had to be applicable and also the Court of Appeal judged wrongly in granting of state immunity in this case which concerns ius cogens rule.

The Court of Cassation j