Inmunidad y transacciones mercantiles internacionales

Abstract

Although the UN Convention on Jurisdictional Immunities of States and their Property (2004) is not yet in force, it has already become the legal international framework in both jurisdictional and enforcement immunities. One of the illustrations of this achievement is its continuous appreciation by supreme legal authorities in different states, from the Spanish Tribunal Supremo to the Court of Appeal and the Supreme Court in England and Wales and to the Japanese Supreme Court. The Convention embraces a restrictive approach to immunity and, therefore, provides for a wide list of proceedings in which state immunity cannot be invoked. Among them, proceedings regarding commercial transactions are highlighted due to their economic relevance and their higher likelihood to produce litigation. By virtue of article 10 of the Convention states cannot invoke immunity from a court of another State in a proceeding arising out of a commercial Transaction. This regulation raises, at least, two practical questions. The first –and perhaps the most important- one deals with the meaning of the expression “Commercial Transaction” under the Convention. The second question refers to the scope of the exceptions included in that section. Both questions are studied in the following essay.