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§ 3. Classification of immunities depending on process stages

In the foreign both domestic doctrine and judiciary practice classification of the state immunities depending on a stage of process [278] for a long time already is extended. The given approach has been reflected also at Law drawing up № 297-FZ «About jurisdiktsionnyh immunities».

On sense of the Law,

The concept «jurisdiktsionnye immunities of the foreign state and its property» includes «the legal immunity, immunity concerning measures under the security for cost and immunity concerning decree execution». M.M.Boguslavsky notices, that the concept «jurisdiktsionnye immunities» is narrower in relation to concept «state immunity and its properties» as application of laws on immunity is not always connected with a legal investigation in court [279].

The legal immunity. The legal immunity means impossibility of consideration of dispute against the state if only it has not expressed on this consent. According to the doctrine of the limited immunity, at certain categories of dispute (having private-law character) immunity is not given to the state, even if it did not express the consent to jurisdiction of other court. Court jurisdiction on consideration of disputes includes research of materials of the reference and consideration of dispute by awarding judgement on business; extends also on intermediate trials, appeals and a recognition (delivery ekzekvatury) the foreign decisions which have been taken out against the states.

Immunity concerning measures under the security for cost. Immunity concerning measures under the security for cost obliges court in which case with participation of the foreign state is considered, to refrain from application of measures of compulsory character, such as arrest, the sequester etc., in relation to property of the foreign state before awarding judgement of the given court. The United Nations convention about jurisdiktsionnyh immunities of the states, and also the Law № 297-FZ «About jurisdiktsionnyh immunities» for measures under the security for cost is provided more strict mode, than for immunity concerning decision execution. Application of such measures probably only in case of the state consent or if it has specially reserved the property for application of such measures. The exception for the commercial property is possible only concerning immunity concerning decree execution.

Immunity concerning decree execution. Jurisdiction on decision execution covers removal and enforcement of court orders or judicial interdictions against the state by means of such means as the restitution, losses, penalties etc. the Legal immunity of the foreign state and removal of findings against of the foreign state can be properly limited by exceptions while immunity from execution concerning the given decisions has more absolute character. Application of forced measures to the state and its property includes различнвіе mechanisms, including more агрессивнвіе, than impeachment by national court. As has specified United Nations International court in the decision on jurisdiktsionnym to immunities: « Immunity from execution which the states and their property located in territory of the foreign states use, covers the big sphere, than the legal immunity given by the same states before foreign vessels. Even if the decision has been taken legally out against the foreign state which could not use legal immunity protection, from this does not follow automatically, that the state against which the decision has been passed, can be the subject of forced measures on court state territory »[280].

In the Soviet literature immunity of the property of the state [281] was separately allocated also. In a separate category scientists explained allocation of the given kind of immunity that fact, that the property of the foreign state should be immune and when the judgement is not taken out. According to the given mode, to the state property administrative actions cannot be applied not only measures of judicial character, but also, it cannot be object of collecting on any to extrajudicial requirements [282]. However M.M.Boguslavsky specifies, that «more often immunity of the property of the state is shown in immunity from provisional remedy of the claim and immunity from measures on decision execution» [283].

Value of the given classification is difficult for overestimating. With reference to process by a recognition and execution of decisions of the international investment arbitration, the given classification means, that at a stage of a recognition and execution of the decision of the international investment arbitration the state can theoretically use the legal immunity, and also immunity in the relation obespechitelnyh measures, and at a stage of enforcement by immunity concerning decision execution.

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A source: Bessonova Anastas Igorevna. Recognition and executions of decisions of the international investment arbitration. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2017

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