Вісник Харківського національного університету внутрішніх справ (Dec 2023)
Liability of legal entities under public law under the immunity of the foreign state that created them
Abstract
The article analyses current Ukrainian legislation, international conventions and doctrinal approaches to the issues of liability of public law legal entities under the immunity of the foreign State which created them. It is noted that by their legal nature, immunities as they exist in modern law are legal exceptions established by the State, since they are legal means aimed at regulating public relations. A characteristic feature of legal immunity is that it provides for additional rights or exemptions from obligations only in the area of legal liability. The emphasis is placed on the fact that the proponents of the theory of limited immunity proceed from the need to divide the actions of a sovereign state into public and private actions and the need to apply different regimes to them. Even if the state continues to refer to absolute immunity, it will not solve the urgent problems, since most states have already abandoned this theory and their courts consider cases accordingly. Thus, the consequence of non-recognition of the decisions of these courts in the field of commercial activity will be the complete exclusion of the state from international relations in the private sphere. It has been concluded that the possible participation of legal entities under public law within civil legal relations, which is currently being actively discussed, does not have unambiguous support among specialists. This state of affairs is caused by the unresolved issues regarding the procedure for managing such a legal entity, what rights it has with regard to the transferred property, and what is its status and responsibility for its activities. The current approaches to characterising the civil law status of such a person as a subject of legal relations do not have a common denominator. The above facts do not provide an answer to the question of property independence of public law legal entities from the State which created them and the possibility of holding them liable for the debts of such a State. As a result, the above range of problematic issues gives rise to a new issue which is the liability of public law legal entities within the immunity of the foreign state which created them. The lack of a clear definition of the property of a public law legal entity, the influence of the State that created it on the management of such a legal entity and the possibility of holding it liable for the State’s debts in international relations (application of State immunities) necessitates further research in this area.
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