Jurisdictional Immunities of States in the Enforcement of Arbitral Rulings

Abstract

Although arbitration is a private system of dispute settlement, domestic courts play a role in enforcing arbitral rulings. Where a foreign state is a party to an arbitral proceeding, that state may invoke immunity, both from adjudication and from measures of constraint, to bar a competent court from enforcing the rulings against the state. In this respect, customary international law regarding jurisdictional immunities of states is merely binding in principle without particularity. A forum state may accordingly have its legal rules in detail, giving effect to such a principle of international law. Nevertheless, Thailand has currently no legislative law on state immunity, making Thai court lack certain legal rules in determining the issue of state immunity in the enforcement of an arbitral ruling before the Thai court. This paper thus analyses the relevant concepts and theories, as well as approaches of international and foreign laws to this subject. This paper aims to propose guidelines for the Thai judiciary in determining the matter of jurisdictional immunities of states in the enforcement of arbitral rulings.