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absolute theory of sovereign immunity


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A theory that long prevailed, particularly in the UK, that a foreign state could not be impleaded (i.e. sued) before a municipal tribunal in any circumstances. The doctrine of sovereign immunity was originally devised to uphold mutual respect between monarchs by according immunity to the exercise of their state functions within foreign jurisdictions. However, the 20th century saw the rise of industrial enterprises funded and controlled by the state: to accord immunity to such enterprises gave them an unfair commercial advantage and the absolute view of state immunity was gradually abandoned by the international community. The UK was one of the last states to respect the traditional view. The common-law position was altered to as to conform to the new world norm by the Court of Appeal in Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529 (CA). The statutory position was altered by the State Immunity Act 1978. An additional restriction on state immunity arose out of the case of R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3) [1999] 2 WLR 827 (HL). Here it was held by the House of Lords that the Criminal Justice Act 1988 removed immunity from a former head of state with regard to acts carried out in the exercise of his official functions if such acts were a breach of * jus cogens (e.g. acts of torture and genocide).

Subjects: Law.


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