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Jure Imperii And Jure Gestionis In Tortious Activity International Law Essay





As opposed to USA, most of European countries support the idea of necessity to apply the distinction of state acts to jure imperii and jure gestionis in tortious activity.

This approach was confirmed by Germany in Chernobyl case. [1] The claim was brought by hobby gardener in which it was required compensation for damage caused by nuclear accident to his produce. In this case, the Court stated: “This division between sovereign and non-sovereign activity is also applied to the legal pursuit of claims of compensation of torts”. [2] Court evaluated the operation of nuclear plant as commercial activity but the plant was in the ownership of state owned enterprise, but not USSR (state).

The Austrian Supreme Court followed to this approach in decision of former Yugoslavia. The former Yugoslavia was sued for destruction of automobile during bombing at Laibach airport. The first instance court directly followed to distinction approach between jure imperii and jure gestionis and stated that bombing is a governmental act. The second instance court stated that the state immunity must be granted because tort was committed outside the territory of Austria and by this way it is avoided the question of distinction acts to jure imperii and jure gestionis. The last instance Supreme Court just repeated the decision of the fist instance court and stated that the state immunity shall be granted because of the governmental character of damaging act. [3]

Also it is worthy to note that a few European courts (German, Italian but not French) had already made exception in application of distinction approach to jure imperii and jure gestionis in traffic accidents. It was very problematic for courts to apply generally accepted nature-test in traffic accidents whereas purpose-test could help much better to identify the type of act (commercial or governmental) in this situation. But the problem was that majority of courts already decided to move away from purpose-test. The Federal Constitutional Court of Germany stated that immunity exception would be granted for all traffic accidents because it was already done in most statutes and draft conventions. [4] In 1966 in case of Ciniglio vs. Indonesian Embassy [5] the Italian Court stated: “It is impossible to invest the use of a means of transport with the character of a public act or the exercise of supremacy” and that is why states act in private capacity. [6]

Another difference with USA model is that European countries (France, Switzerland) do not provide exception in expropriation. The absence of such exception is explained with governmental character of almost all expropriations and therefore they are immune. [7]

Special attention deserved the Greet Britain, because in this state was adopted the national legislative act on state immunit论文英语论文网提供整理,提供论文代写英语论文代写代写论文代写英语论文代写留学生论文代写英文论文留学生论文代写相关核心关键词搜索。

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