CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … codifies the central ethos of the restrictive theory, cannot a contrario be treated as adhering to absolute immunity. 3. China and State Immunity To this date, there is no Chinese law nor court case specifically dealing with state immunity. 28 One could possibly count the Law on Judicial Immunity from Measures of Constraint for the Property of Foreign Central Banks 2005 (“the Central Bank Property Law”) as an exception. 29 Additionally, and more significantly perhaps, China became a signatory to the UNCSI 14 September 2005. Notwithstanding this, the Standing Committee of the Chinese Congress declared in 2011 that “China’s position on state immunity is normally referred to as ‘absolute immunity’, which has been reflected in the formal declarations and practices of the Chinese Government, as a legal fact widely acknowledged by the international community”. 30 This declaration followed as a result of the FG Hemisphere case, where the Chinese Ministry of Foreign Affairs (MFA) had sent several interfering letters to the Hong Kong SAR (HKSAR) courts. 31 The FG Hemisphere case was brought in the HKSAR High Court in November 2008. Initially, the Congo challenged the jurisdiction, and hence underscored which theory of immunity that was to be embraced in HKSAR – the absolute or restrictive. 32 The High Court did not settle that issue, but did hold that the Congo had not waived immunity simply by 28 Hobér, (n 3) 507. 29 The law was adopted for the protection of property of central banks in Hong Kong SAR, but is applicable in the People’s Republic of China and Macao SAR as well. However, see ibid 509 (“The [Central Bank Property Law] does not deal with sovereign immunity in general, and therefore, does not shed more light on China’s overall position on sovereign immunity, nor could it serve as a legal basis for the People’s Courts to deal with a lawsuit in China […].”). 30 See Shan & Wang, (n 7). 31 Hemisphere Case. The office of the Commissioner of the MFA sent three letters. One on 20 November 2008 (quoted in Judgment, para. 197 (majority op.); one on 21 May 2009; and one 25 August 2010. All clearly articulating China’s absolutist position vis-á-vis state immunity. See generally Hobér, (n 3) 514-518. The letters clearly stated that China adheres to absolute immunity and that it “has never applied the principle of restrictive immunity”. Hobér, (n 3) 515. In one of the letters, the MFA of China in HKSAR had sought to articulate China’s position vis-á-vis the UNCSI. It held, inter alia , that “3. […] until now China has not yet ratified the Convention, and the Convention itself has not yet entered into force. Therefore, the Convention has no binding force on China, and moreover it cannot be the basis of assessing China’s principled position on relevant issues. 4. After signature of the Convention, the position of China in maintaining absolute immunity has not been changed, and has never applied or recognized the so-called principle or theory of ‘restrictive immunity’ […].” Hobér, quote, para 42. 32 For those who want a summary of the factual background, see FIETTA, Volterra, ‘Absolute Immunity in Hong Kong’ (2011) (“In 2004, FG Hemisphere Associates LLC (“FGH”), a so-called “vulture fund” dealing in distressed assets, obtained the rights in two arbitration awards given against the Democratic Republic of the Congo (“DRC”). FGH sought to enforce the arbitration awards against various assets belonging to the DRC in Hong Kong. The DRC acknowledged service for the purposes of disputing jurisdiction. The dispute raised two issues to be determined by the courts of Hong Kong. The first concerned the nature of sovereign immunity: which doctrine of immunity, “absolute” or “restrictive”, is followed in Hong Kong? The second issue concerned waiver: had the DRC waived its immunity before the Hong Kong courts?”). For a more elaborate case note, see WEI, Shen,, ‘FG Hemisphere Associates v. Democratic Republic of the Congo [2011] 14 H.K.C.F.A.R. 395’ (2014) 108 The American Journal of International Law 776-782.

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