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Sovereign Wealth Funds and State Immunity de Marco Argentini

Sovereign Wealth Funds and State Immunity: Queen Mary Studies in International Law, cartea 54

Autor Marco Argentini
en Limba Engleză Hardback – 7 noi 2024
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.
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Specificații

ISBN-13: 9789004710788
ISBN-10: 9004710787
Pagini: 175
Dimensiuni: 155 x 235 mm
Greutate: 0.58 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Queen Mary Studies in International Law

Notă biografică

Marco Argentini, Ph.D. (2023), University of Bologna, is Postdoctoral Fellow and Adjunct Professor in International Law. He is admitted to the Italian Bar.

Cuprins

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

1The Development of swf s as New State Investment Vehicles
1 The Emergence of swf s
1.1Historical Antecedents: The India Companies and the Industrial Revolution (before 1953)

1.2The Genesis of Commodity and Non-commodity swf s (between 1953 and the Mid-1990s)

1.3The Expansion of swf s: The Asian Financial Crisis and the Rise of Crude Oil Price (between the Mid-1990s and 2005)

1.4swf s Achieving International Prominence (after 2005)


2 The Quest for a Definition of swf s: the Main Scholarly Definitions
2.1The First Definitions

2.2swf s as Government-Managed Entities Seeking Higher Rates of Returns

2.3Definitions Focusing on swf s’ Liability

2.4Definitions Based on How swf s Are Managed

2.5The Relevance of Funds’ Ownership and Purposes


3 Institutional Attempts to Define and Regulate swf s
3.1imf Definitions

3.2The ‘Santiago Principles’

3.3Other Definitions Provided by International Organizations


4 Differences between swf s and Other Cognate Entities
4.1swf s and State-Owned Enterprises

4.2swf s and Public Pension Funds

4.3swf s and International Reserves


2swf s’ Core Elements
1 Legal Structure

2 Governance

3 Source of Assets

4 Purpose
4.1Diplomatic and Political Tool

4.2National Development Tool

4.3Stabilisation and Diversification Tool

4.4Intergenerational Savings Tool


5 Types of Investments

Provisional Conclusions


Part 2
swf s and Adjudicative Immunity
Introduction to Part 2

3The 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


4The Common Law Approach to Adjudicative Immunity: Two Archetypes of Statutory Norms
1 United States
1.1Pool-of-Assets swf s

1.2swf s Established with Independent Legal Personality

1.3The Commercial Exception Under the fsia


2 United Kingdom
2.1Qualification of a Pool-of-Assets swf as a ‘Department of Government’

2.2The Commercial Exception Under the sia

2.3swf s Established as Separate Entities


5The Civil Law Approach to Adjudicative Immunity
1 France

2 Germany

3 Italy

4 China
4.1Once Upon a Time: prc as the Last Bastion of Absolute Immunity

4.2State Immunity and swf s before 2023

4.3The Current Scenario


Provisional Conclusions


Part 3
swf s and Immunity from Execution
Introduction to Part 3

6The 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


7The US fsia and the UK sia
1 United States
1.1Post-judgment Attachment: Pool-of-Assets swf s

1.2Post-judgment Attachment: swf s Established as Separate Entities

1.3Pre-judgment Attachment


2 United Kingdom
2.1Post-judgment Execution. The Commercial Exception

2.2Pre-judgment Attachment

2.3swf s with Separate Legal Personality


8European Civil Law Jurisdictions: France, Germany and Italy
1 France
1.1From ‘Eurodif’ to the ‘Sapin 2’ Law

1.2French Courts’ Decisions on swf s’ Property


2 Germany

3 Italy
3.1Pre-judgment Measures


4 China
4.1Pre-2023: China’s Traditional Approach towards Immunity from Execution

4.2Post-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

9The Umbrella Protection of Central Banks to swf s
1 swf s in Systems Providing for Near-Absolute Protection to Central Bank Assets
1.1The uncsi

1.2United Kingdom

1.3China


2 swf s and the ‘Purpose’ Test in Jurisdictions Granting a Milder Protection to Central Banks
2.1United States

2.2France

2.3Germany


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