CYIL 2014

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS broadly enough to be able to encompass developments in the international law of immunities. While this turn towards the restrictive doctrine was overall a positive development, as it brought the Czech position in line with the general international standard, the rather rudimentary reasoning through which the Supreme Court carried out this major change was somewhat disappointing. 41 Consequently, beyond the basic conceptualization of State immunity as restricted, the specific parameters of the new position to State immunities are in many aspects still somewhat unclear, and the Supreme Court has yet to provide more elaborated and nuanced guidance on many particular issues. Remarkably, however, Czech legal scholarship maintained even after 2008 that the approach to immunity in the Czech Republic was governed by the absolute immunity doctrine. 42 The new 2012 Act now specifically defines State immunity as restricted to acta jure imperii . 43 3.3 Conceptualization of State Immunity in Czech Courts Generally, the current conceptualization of State immunity doctrine in Czech courts, as expressed in the leading cases, rests on the following basic elements: (1) State immunity derives from the independence and sovereign equality of States – par in parem non habet jurisdictionem. (2) State immunity is not absolute; a foreign State is exempted from the jurisdiction of Czech courts only with respect to acts of sovereign public authority – acta jure imperii . The distinction between acta jure imperii and acts not exercised as a sovereign public authority – acta jure gestionis – depends on the position of the foreign State in the particular legal relationship: whether the relationship is based on the legal equality of its participants or whether the foreign State acts as a sovereign bearer of public authority. (3) The limited scope of State immunity reflects its functional nature. 3.3.1 Legal Basis for State Immunity The Supreme Court has in its decisions explicitly articulated its position that the basis for State immunity is the independence and equality of States, as expressed in the maxim par in parem non habet imperium (an equal has no authority over an Republic dated 27 August 1987, No. Cpjf 27/86; Ruling of the High Court in Prague, dated 31 August 1995, No. 10 Cmo 418/95-16; Caban P., Jurisdikční imunity států , 143-144; Balaš V. and Pauknerová M., The Czechoslovak Approach to the Draft Convention on Jurisdictional Immunities of States and Their Property, 878-879; Pokorný M., Zákon o mezinárodním právu soukromém a procesním: Komentář , 74. 41 In fact, the Czech Supreme Court articulated the new restrictive approach to immunity in a rather sweeping manner and it did so in an employment context, where the situation is much more complicated than in strictly commercial cases. States continue to recognize immunity for certain categories of employment disputes. See Section 3.4.1 below. 42 Dobiáš P. (ed), Zákon o mezinárodním právu soukromém: Komentář [Act on Private International Law: Commentary] (1 st ed, Leges 2013), 61; Pauknerová M. and Rozehnalová N., Zákon o mezinárodním právu soukromém: Komentář [Act on Private International Law: Commentary] (1 st ed, Wolters Kluwer ČR 2013), 69. 43 The text of § 7 Sec. 1 of the 2012 Act is reproduced at ft 31 above.

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