Restrictive Theory of State Immunity and its Application in The Republic of Lithuania
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Abstract
Most of the states abandoned the theory of absolute immunity since the fifties. The restrictive theory of state immunity is declared in both statutory and case law. Under the restrictive theory of state immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts of a state, but not with respect to private acts.
But the Civil Procedure Code of The Republic of Lithuania, passed in 1964, stated the rule of absolute immunity – the potential litigants were allowed to pursue claims in the courts against foreign states only in case of a written consent of the foreign state, the execution of the judgment in respect of foreign state‘s property was possible only with the same condition. This rule was the inheritance of the USSR times not matching changed social relations and political and economic state system of Lithuania.
In 1998 The Supreme Court of Lithuania made the decision in civil case V. Stukonis v. USA embassy, in which stated the restrictive theory of state immunity. The decision indicated the main landmarks of the restrictive theory such as the distinction between acta jure imperii or sovereign acts and acta jure gestionis or private, non-sovereign acts.
Though the Lithuanian case law in the field of state immunity is still scanty. Only three civil cases have reached the Supreme Court so Lithuanian courts have not faced most of the problems of applying the restrictive state immunity that the courts of other states had.
The article presents a short overview of the development of the restrictive state immunity doctrine indicating the main problems of applying the doctrine that the courts of other states were confronted of, also presenting the solutions of these problems. The article analyzes certain aspects of Lithuanian Supreme Court case law, proposes improvements of the existing legal regulation.
But the Civil Procedure Code of The Republic of Lithuania, passed in 1964, stated the rule of absolute immunity – the potential litigants were allowed to pursue claims in the courts against foreign states only in case of a written consent of the foreign state, the execution of the judgment in respect of foreign state‘s property was possible only with the same condition. This rule was the inheritance of the USSR times not matching changed social relations and political and economic state system of Lithuania.
In 1998 The Supreme Court of Lithuania made the decision in civil case V. Stukonis v. USA embassy, in which stated the restrictive theory of state immunity. The decision indicated the main landmarks of the restrictive theory such as the distinction between acta jure imperii or sovereign acts and acta jure gestionis or private, non-sovereign acts.
Though the Lithuanian case law in the field of state immunity is still scanty. Only three civil cases have reached the Supreme Court so Lithuanian courts have not faced most of the problems of applying the restrictive state immunity that the courts of other states had.
The article presents a short overview of the development of the restrictive state immunity doctrine indicating the main problems of applying the doctrine that the courts of other states were confronted of, also presenting the solutions of these problems. The article analyzes certain aspects of Lithuanian Supreme Court case law, proposes improvements of the existing legal regulation.
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Please see Copyright and Licence Agreement for further details.
