Resumen de Propos introductifs
- English
Introducing a colloquium is not an easy task if you consider the science of the different lecturers who are to deliver their papers after oneself. To avoid the difficulty, this introducing speech will be limited to some aspects of the immunity from execution, substantive or procedural, sometimes of lesser importance. A. The first one is related to the use of “restricted” to describe the immunities. One cannot deny that, at the beginning, immunity was always granted to a foreign State. It became “restricted” from the moment when State-owned companies began to intervene in the private sector. The term “restricted” meant that a foreign state could not always claim the benefit of immunity. Nevertheless, in a more theoretical approach, one could say the term “restricted” was not accurate.
A State enjoys immunity because of its sovereignty and within the limits of his sovereignty. There is no reason why immunity could be claimed when a State-owned company works in the same field as a private one. This idea appears in the different treaties following the Great War: “If the German Government engages in international trade, it shall not in respect thereof have or be deemed to have any rights, privileges or immunities of sovereignty” [45]. The truth is that immunity is not “restricted” but, its existence depending on sovereignty, immunity does not exist where sovereignty is not concerned. The author is afraid this is a mere matter of words, so that no consequence can be drawn from such an analysis.
B. The distinction between the two immunities (jurisdiction and execution) is easy: immunity from jurisdiction prohibits the judge from ruling; on the contrary, immunity from execution requires a ruling from the judge to release an attachment. The logical order between these immunities is first, to obtain a judgment and enforce it afterwards. But, under French law, things do not always work that way with conservatory measures. Most often, the supposedly creditor will solicit an authorization which will be granted on the ground of “a claim which appears founded in principle”. Afterwards, in the course of the procedure, the creditor can obtain a judgment making way to execution, i.e selling the goods or being paid by the garnishee. What is the nature of the authorization? Is it a judgment on the merit or a mere prerequisite for the attachment? If it is a judgment, immunity from jurisdiction is involved [46]; if it is a prerequisite, immunity from execution [47]. Under French law, an authorization cannot be used twice, supposed the attachment would be irregular or obsolete, then the choice is in favor of the prerequisite [48]. Following the IOUKOS award sentencing Russia to pay $50 billions to the shareholders, the execution of which raised a lot of problems, a new law was passed which compelled the creditor to seek for an authorization before any attachment. This could encourage the creditor to seize the assets of supposedly instrumentalities of the State [49].
C. The rise of the instrumentality. It is a fundamental principle that a creditor can only seize the assets of his debtor. Such rule prevents any seizure against a state-owned company for the debts of the State. But, such rule no longer applies when this company is, in fact, so tightly linked with the State that there is no real difference between them and the company is a mere instrumentality. In that case, the right to seize extends to the assets of the company. Practically, the procedure is easy because the creditor may use against the instrumentality the very decision he obtained against the State [50]. Such situation has different explanations. There is a general trend to develop state-owned companies the assets of which can be seized only by the company’s creditors, except when the creditor can prove the company is an instrumentality of the State. Furthermore, execution against States is the playground of “vulture funds” whose rationale is getting money. Everything must be tried to achieve that goal. Emmanuel Gaillard criticized this situation: “Is the social cost of such an exception to the principle of the autonomy of State legal entities greater or lesser than that of leaving the enforcement of an award to the unilateral will of the debtor, or of setting aside State immunity even more drastically in the name of performing agreements in good faith?” [51]. But, why should a State be prevented to do what private companies do? Much better appears a distinction between the assets of the State. Should a State own an airline, a creditor could seize the shares of the State – which are investments in a private sector – but not overflight charges which have their origin in sovereignty. Thought could also be given to sovereign wealth funds which are sort of piggy banks, but, in real life, thrifty states are seldom bad payers… To conclude, this colloquium owes to these creditors who use against their State debtor the very strategy used during the medieval wars: laying siege to a castle, looking for the weak parts, trying and trying again and, if it is impossible to enter, wait until the occupants starve to death. Is it not what happens with indebted States whose debt turns in a desirable commodity and whose population is merely ignored?
- français
Introduire un colloque lors duquel tous les aspects de l’immunité d’exécution seront ensuite examinés rend cette tâche difficile. Aussi, plutôt que de l’affronter, ces propos introductifs aborderont, sans d’ailleurs les approfondir, quelques aspects de l’immunité d’exécution, substantiels, mais aussi procéduraux, qui peuvent paraître secondaires. La première question, non seulement théorique, mais encore dépourvue de conséquences, porte sur l’adjectif « restreint » que l’on associe au substantif « immunité ». La deuxième sur la distinction des immunités de juridiction et d’exécution qui a prêté à hésitation à propos des mesures conservatoires. La troisième sur ce que j’ai appelé le « dilemme de Motulsky » qui, à propos d’une question de procédure – dans quel ordre les moyens de défense tirés de l’immunité ou de l’incompétence internationale de la juridiction saisie doivent-ils être invoqués – examine les rapports entre immunité et incompétence. La quatrième et dernière, plus importante, est consacrée à l’émergence de la notion d’émanation qui permet d’élargir le droit de poursuite d’un créancier.
