Investor Presentaiton
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enforcement in commercial cases and could give rise to difficult
issues in investment cases as well. 193
Sovereign immunity from execution. By virtue of their
agreement to arbitrate, States are generally held to have waived any
immunity-based objection to the jurisdiction of national courts
enforcing awards. It is generally accepted, however, that a State's
assets enjoy separate immunity. A waiver of jurisdictional immunity
does not equate to a waiver of execution immunity. 194 Neither the
New York Convention nor the ICSID Convention contains a waiver
of execution immunity; the New York Convention is silent on the
topic, while the ICSID Convention explicitly states that the
enforcement provisions of the Convention were not intended to
derogate from domestic State immunity laws.
The amenability to execution of a State's assets will thus depend
on the national immunity law in the jurisdiction where the assets are
located. Some jurisdictions, for example China, have absolute
immunity. A larger number of States follow the restrictive theory of
immunity, under which sovereign assets, such as diplomatic
property and central bank assets, are not subject to execution;
however, commercial property may be seizable. 195 This means that a
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194
195
Ibid., pp. 680–681.
Fox, 2008, pp. 599, 601.
The UN Convention on Jurisdictional Immunities of States and Their
Property lists the following property that is generally immune from
execution: "(a) property, including any bank account, which is used or
intended for use in the performance of the functions of the diplomatic
mission of the State or its consular posts [...] for the use of missions; (b)
property of a military character or used or intended for use in the
performance of military functions; (c) property of the central bank or other
monetary authority of the State; (d) property forming part of the cultural
heritage of the State or part of its archives and not placed or intended to be
placed on sale; (e) property forming part of an exhibition of objects of
scientific, cultural or historical interest and not placed or intended to be
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