European Convention on State Immunity, (ETS No. 74), entered into force June 11, 1976.

Protocol to the Convention (ETS 074A)

Preamble

    The member States of the Council of Europe, signatory hereto,
    Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
    Taking into account the fact that there is in international law a tendency to restrict the cases in which a State may claim immunity before foreign courts;
    Desiring to establish in their mutual relations common rules relating to the scope of the immunity of one State from the jurisdiction of the courts of another State, and designed to ensure compliance with judgments given against another State;
    Considering that the adoption of such rules will tend to advance the work of harmonisation undertaken by the member States of the Council of Europe in the legal field,
    Have agreed as follows:

Chapter I – Immunity from jurisdiction

  1. A Contracting State which institutes or intervenes in proceedings before a court of another Contracting State submits, for the purpose of those proceedings, to the jurisdiction of the courts of that State.
  2. Such a Contracting State cannot claim immunity from the jurisdiction of the courts of the other Contracting State in respect of any counterclaim:
    1. arising out of the legal relationship or the facts on which the principal claim is based;
    2. if, according to the provisions of this Convention, it would not have been entitled to invoke immunity in respect of that counterclaim had separate proceedings been brought against it in those courts.
  3. A Contracting State which makes a counterclaim in proceedings before a court of another Contracting State submits to the jurisdiction of the courts of that State with respect not only to the counterclaim but also to the principal claim.

    A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has undertaken to submit to the jurisdiction of that court either:

    1. by international agreement;
    2. by an express term contained in a contract in writing; or
    3. by an express consent given after a dispute between the parties has arisen.
  1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if, before claiming immunity, it takes any step in the proceedings relating to the merits. However, if the State satisfies the Court that it could not have acquired knowledge of facts on which a claim to immunity can be based until after it has taken such a step, it can claim immunity based on these facts if it does so at the earliest possible moment.
  2. A Contracting State is not deemed to have waived immunity if it appears before a court of another Contracting State in order to assert immunity.
  1. Subject to the provisions of Article 5, a Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum.
  2. Paragraph 1 shall not apply:
    1. in the case of a contract concluded between States;
    2. if the parties to the contract have otherwise agreed in writing;
    3. if the State is party to a contract concluded on its territory and the obligation of the State is governed by its administrative law.
  1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.
  2. Paragraph 1 shall not apply where:
    1. the individual is a national of the employing State at the time when the proceedings are brought;
    2. at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or
    3. the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.
  3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.
  1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it participates with one or more private persons in a company, association or other legal entity having its seat, registered office or principal place of business on the territory of the State of the forum, and the proceedings concern the relationship, in matters arising out of that participation, between the State on the one hand and the entity or any other participant on the other hand.
  2. Paragraph 1 shall not apply if it is otherwise agreed in writing.
  1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has on the territory of the State of the forum an office, agency or other establishment through which it engages, in the same manner as a private person, in an industrial, commercial or financial activity, and the proceedings relate to that activity of the office, agency or establishment.
  2. Paragraph 1 shall not apply if all the parties to the dispute are States, or if the parties have otherwise agreed in writing.

    A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate:

    1. to a patent, industrial design, trade-mark, service mark or other similar right which, in the State of the forum, has been applied for, registered or deposited or is otherwise protected, and in respect of which the State is the applicant or owner;
    2. to an alleged infringement by it, in the territory of the State of the forum, of such a right belonging to a third person and protected in that State;
    3. to an alleged infringement by it, in the territory of the State of the forum, of copyright belonging to a third person and protected in that State;
    4. to the right to use a trade name in the State of the forum.

    A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to:

    1. its rights or interests in, or its use or possession of, immovable property; or
    2. its obligations arising out of its rights or interests in, or use or possession of, immovable property

    and the property is situated in the territory of the State of the forum.

    A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a right in movable or immovable property arising by way of succession, gift or bona vacantia.

    A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.

  1. Where a Contracting State has agreed in writing to submit to arbitration a dispute which has arisen or may arise out of a civil or commercial matter, that State may not claim immunity from the jurisdiction of a court of another Contracting State on the territory or according to the law of which the arbitration has taken or will take place in respect of any proceedings relating to:
    1. the validity or interpretation of the arbitration agreement;
    2. the arbitration procedure;
    3. the setting aside of the award,

    unless the arbitration agreement otherwises provides.

  2. Paragraph 1 shall not apply to an arbitration agreement between States.

    Paragraph 1 of Article 1 shall not apply where a Contracting State asserts, in proceedings pending before a court of another Contracting State to which it is not a party, that it has a right or interest in property which is the subject-matter of the proceedings, and the circumstances are such that it would have been entitled to immunity if the proceedings had been brought against it.

    Nothing in this Convention shall be interpreted as preventing a court of a Contracting State from administering or supervising or arranging for the administration of property, such as trust property or the estate of a bankrupt, solely on account of the fact that another Contracting State has a right or interest in the property.

    A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear.

Chapter II – Procedural rules

  1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply.
  2. The competent authorities of the State of the forum shall transmit

    3. through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State.

  3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs.
  4. The time-limits within which the State must enter an appearance or appeal against any judgment given by default shall begin to run two months after the date on which the document by which the proceedings were instituted or the copy of the judgment is received by the Ministry of Foreign Affairs.
  5. If it rests with the court to prescribe the time-limits for entering an appearance or for appealing against a judgment given by default, the court shall allow the State not less than two months after the date on which the document by which the proceedings are instituted or the copy of the judgment is received by the Ministry of Foreign Affairs.
  6. A Contracting State which appears in the proceedings is deemed to have waived any objection to the method of service.
  7. If the Contracting State has not appeared, judgment by default may be given against it only if it is established that the document by which the proceedings were instituted has been transmitted in conformity with paragraph 2, and that the time-limits for entering an appearance provided for in paragraphs 4 and 5 have been observed.

    No security, bond or deposit, however described, which could not have been required in the State of the forum of a national of that State or a person domiciled or resident there, shall be required of a Contracting State to guarantee the payment of judicial costs or expenses. A State which is a claimant in the courts of another Contracting State shall pay any judicial costs or expenses for which it may become liable.

    A Contracting State party to proceedings before a court of another Contracting State may not be subjected to any measure of coercion, or any penalty, by reason of its failure or refusal to disclose any documents or other evidence. However the court may draw any conclusion it thinks fit from such failure or refusal.

  1. A court before which proceedings to which a Contracting State is a party are instituted shall, at the request of one of the parties or, if its national law so permits, of its own motion, decline to proceed with the case or shall stay the proceedings if other proceedings between the same parties, based on the same facts and having the same purpose:
    1. are pending before a court of that Contracting State, and were the first to be instituted; or
    2. are pending before a court of any other Contracting State, were the first to be instituted and may result in a judgment to which the State party to the proceedings must give effect by virtue of Article 20 or Article 25.
  2. Any Contracting State whose law gives the courts a discretion to decline to proceed with a case or to stay the the proceedings in cases where proceedings between the same parties, based on the same facts and having the same purpose, are pending before a court of another Contracting State, may, by notification addressed to the Secretary General of the Council of Europe, declare that its courts shall not be bound by the provisions of paragraph 1.

Chapter III – Effect of Judgment

  1. A Contracting State shall give effect to a judgment given against it by a court of another Contracting State:
    1. if, in accordance with the provisions of Articles 1 to 13, the State could not claim immunity from jurisdiction; and
    2. if the judgment cannot or can no longer be set aside if obtained by default, or if it is not or is no longer subject to appeal or any other form of ordinary review or to annulment.
  2. Nevertheless, a Contracting State is not obliged to give effect to such a judgment in any case:
    1. where it would be manifestly contrary to public policy in that State to do so, or where, in the circumstances, either party had no adequate opportunity fairly to present his case;
    2. where proceedings between the same parties, based on the same facts and having the same purpose:
      1. are pending before a court of that State and were the first to be instituted;
      2. are pending before a court of another Contracting State, were the first to be instituted and may result in a judgment to which the State party to the proceedings must give effect under the terms of this Convention;
    3. where the result of the judgment is inconsistent with the result of another judgment given between the same parties:
      1. by a court of the Contracting State, if the proceedings before that court were the first to be instituted or if the other judgment has been given before the judgment satisfied the conditions specified in paragraph 1.b; or
      2. by a court of another Contracting State where the other judgment is the first to satisfy the requirements laid down in the present Convention;
    4. where the provisions of Article 16 have not been observed and the State has not entered an appearance or has not appealed against a judgment by default.
  3. In addition, in the cases provided for in Article 10, a Contracting State is not obliged to give effect to the judgment:
    1. if the courts of the State of the forum would not have been entitled to assume jurisdiction had they applied, mutatis mutandis, the rules of jurisdiction (other than those mentioned in the annex to the present Convention) which operate in the State against which judgment is given; or
    2. if the court, by applying a law other than that which would have been applied in accordance with the rules of private international law of that State, has reached a result different from that which would have been reached by applying the law determined by those rules.

    However, a Contracting State may not rely upon the grounds of refusal specified in sub-paragraphs a and b above if it is bound by an agreement with the State of the forum on the recognition and enforcement of judgments and the judgment fulfils the requirement of that agreement as regards jurisdiction and, where appropriate, the law applied.

  1. Where a judgment has been given against a Contracting State and that State does not give effect thereto, the party which seeks to invoke the judgment shall be entitled to have determined by the competent court of that State the question whether effect should be given to the judgment in accordance with Article 20. Proceedings may also be brought before this court by the State against which judgment has been given, if its law so permits.
  2. Save in so far as may be necessary for the application of Article 20, the competent court of the State in question may not review the merits of the judgment.
  3. Where proceedings are instituted before a court of a State in accordance with paragraph 1:
    1. the parties shall be given an opportunity to be heard in the proceedings;
    2. documents produced by the party seeking to invoke the judgment shall not be subject to legalisation or any other like formality;
    3. no security, bond or deposit, however described, shall be required of the party invoking the judgment by reason of his nationality, domicile or residence;
    4. the party invoking the judgment shall be entitled to legal aid under conditions no less favourable than those applicable to nationals of the State who are domiciled and resident therein.
  4. Each Contracting State shall, when depositing its instrument of ratification, acceptance or accession, designate the court or courts referred to in paragraph 1, and inform the Secretary General of the Council of Europe thereof.
  1. A Contracting State shall give effect to a settlement to which it is a party and which has been made before a court of another Contracting State in the course of the proceedings; the provisions of Article 20 do not apply to such a settlement.
  2. If the State does not give effect to the settlement, the procedure provided for in Article 21 may be used.

    No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.

Chapter IV – Optional provisions

  1. Notwithstanding the provisions of Article 15, any State may, when signing this Convention or depositing its instrument of ratification, acceptance or accession, or at any later date, by notification addressed to the Secretary General of the Council of Europe, declare that, in cases not falling within Articles 1 to 13, its courts shall be entitled to entertain proceedings against another Contracting State to the extent that its courts are entitled to entertain proceedings against States not party to the present Convention. Such a declaration shall be without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority (acta jure imperii).
  2. The courts of a State which has made the declaration provided for in paragraph 1 shall not however be entitled to entertain such proceedings against another Contracting State if their jurisdiction could have been based solely on one or more of the grounds mentioned in the annex to the present Convention, unless that other Contracting State has taken a step in the proceedings relating to the merits without first challenging the jurisdiction of the court.
  3. The provisions of Chapter II apply to proceedings instituted against a Contracting State in accordance with the present article.
  4. The declaration made under paragraph 1 may be withdrawn by notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take effect three months after the date of its receipt, but this shall not affect proceedings instituted before the date on which the withdrawal becomes effective.
  1. Any Contracting State which has made a declaration under Article 24 shall, in cases not falling within Articles 1 to 13, give effect to a judgment given by a court of another Contracting State which has made a like declaration:
    1. if the conditions prescribed in paragraph 1.b of Article 20 have been fulfilled; and
    2. if the court is considered to have jurisdiction in accordance with the following paragraphs.
  2. However, the Contracting State is not obliged to give effect to such a judgment:
    1. if there is a ground for refusal as provided for in paragraph 2 of Article 20; or
    2. if the provisions of paragraph 2 of Article 24 have not been observed.
  3. Subject to the provisions of paragraph 4, a court of a Contracting State shall be considered to have jurisdiction for the purpose of paragraph 1.b:
    1. if its jurisdiction is recognised in accordance with the provisions of an agreement to which the State of the forum and the other Contracting State are Parties;
    2. where there is no agreement between the two States concerning the recognition and enforcement of judgments in civil matters, if the courts of the State of the forum would have been entitled to assume jurisdiction had they applied, mutatis mutandis, the rules of jurisdiction (other than those mentioned in the annex to the present Convention) which operate in the State against which the judgment was given. This provision does not apply to questions arising out of contracts.
  4. The Contracting States having made the declaration provided for in Article 24 may, by means of a supplementary agreement to this Convention, determine the circumstances in which their courts shall be considered to have jurisdiction for the purposes of paragraph 1.b of this article.
  5. If the Contracting State does not give effect to the judgment, the procedure provided for in Article 21 may be used.

    Notwithstanding the provisions of Article 23, a judgment rendered against a Contracting State in proceedings relating to an industrial or commercial activity, in which the State is engaged in the same manner as a private person, may be enforced in the State of the forum against property of the State against which judgment has been given, used exclusively in connection with such an activity, if:

    1. both the State of the forum and the State against which the judgment has been given have made declarations under Article 24;
    2. the proceedings which resulted in the judgment fell within Articles 1 to 13 or were instituted in accordance with paragraphs 1 and 2 of Article 24; and
    3. the judgment satisfies the requirements laid down in paragraph 1.b of Article 20.

Chapter V – General provisions

  1. For the purposes of the present Convention, the expression "Contracting State" shall not include any legal entity of a Contracting State which is distinct therefrom and is capable of suing or being sued, even if that entity has been entrusted with public functions.
  2. Proceedings may be instituted against any entity referred to in paragraph 1 before the courts of another Contracting State in the same manner as against a private person; however, the courts may not entertain proceedings in respect of acts performed by the entity in the exercise of sovereign authority (acta jure imperii).
  3. Proceedings may in any event be instituted against any such entity before those courts if, in corresponding circumstances, the courts would have had jurisdiction if the proceedings had been instituted against a Contracting State.
  1. Without prejudice to the provisions of Article 27, the constituent States of a Federal State do not enjoy immunity.
  2. However, a Federal State Party to the present Convention, may, by notification addressed to the Secretary General of the Council of Europe, declare that its constituent States may invoke the provisions of the Convention applicable to Contracting States, and have the same obligations.
  3. Where a Federal State has made a declaration in accordance with paragraph 2, service of documents on a constituent State of a Federation shall be made on the Ministry of Foreign Affairs of the Federal State, in conformity with Article 16.
  4. The Federal State alone is competent to make the declarations, notifications and communications provided for in the present Convention, and the Federal State alone may be party to proceedings pursuant to Article 34.

    The present Convention shall not apply to proceedings concerning:

    1. social security;
    2. damage or injury in nuclear matters;
    3. customs duties, taxes or penalties.

    The present Convention shall not apply to proceedings in respect of claims relating to the operation of seagoing vessels owned or operated by a Contracting State or to the carriage of cargoes and of passengers by such vessels or to the carriage of cargoes owned by a Contracting State and carried on board merchant vessels.

    Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State.

    Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.

    Nothing in the present Convention shall affect existing or future international agreements in special fields which relate to matters dealt with in the present Convention.

  1. Any dispute which might arise between two or more Contracting States concerning the interpretation or application of the present Convention shall be submitted to the International Court of Justice on the application of one of the parties to the dispute or by special agreement unless the parties agree on a different method of peaceful settlement of the dispute.
  2. However, proceedings may not be instituted before the International Court of Justice which relate to:
    1. a dispute concerning a question arising in proceedings instituted against a Contracting State before a court of another Contracting State, before the court has given a judgment which fulfils the condition provided for in paragraph 1.b of Article 20;
    2. a dispute concerning a question arising in proceedings instituted before a court of a Contracting State in accordance with paragraph 1 of Article 21, before the court has rendered a final decision in such proceedings.
  1. The present Convention shall apply only to proceedings introduced after its entry into force.
  2. When a State has become Party to this Convention after it has entered into force, the Convention shall apply only to proceedings introduced after it has entered into force with respect to that State.
  3. Nothing in this Convention shall apply to proceedings arising out of, or judgments based on, acts, omissions or facts prior to the date on which the present Convention is opened for signature.

Chapter VI – Final provisions

  1. The present Convention shall be open to signature by the member States of the Council of Europe. It shall be subject to ratification or acceptance. Instruments of ratification or acceptance shall be deposited with the Secretary General of the Council of Europe.
  2. The Convention shall enter into force three months after the date of the deposit of the third instrument of ratification or acceptance.
  3. In respect of a signatory State ratifying or accepting subsequently, the Convention shall enter into force three months after the date of the deposit of its instrument of ratification or acceptance.
  1. After the entry into force of the present Convention, the Committee of Ministers of the Council of Europe may, by a decision taken by a unanimous vote of the members casting a vote, invite any non-member State to accede thereto.
  2. Such accession shall be effected by depositing with the Secretary General of the Council of Europe an instrument of accession which shall take effect three months after the date of its deposit.
  3. However, if a State having already acceded to the Convention notifies the Secretary General of the Council of Europe of its objection to the accession of another non-member State, before the entry into force of this accession, the Convention shall not apply to the relations between these two States.
  1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or accession, specify the territory or territories to which the present Convention shall apply.
  2. Any State may, when depositing its instrument of ratification, acceptance or accession or at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend this Convention to any other territory or territories specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.
  3. Any declaration made in pursuance of the preceding paragraph may, in respect of any territory mentioned in such declaration, be withdrawn according to the procedure laid down in Article 40 of this Convention.

    No reservation is permitted to the present Convention.

  1. Any Contracting State may, in so far as it is concerned, denounce this Convention by means of notification addressed to the Secretary General of the Council of Europe.
  2. Such denunciation shall take effect six months after the date of receipt by the Secretary General of such notification. This Convention shall, however, continue to apply to proceedings introduced before the date on which the denunciation takes effect, and to judgments given in such proceedings.

    The Secretary General of the Council of Europe shall notify the member States of the Council of Europe and any State which has acceded to this Convention of:

    1. any signature;
    2. any deposit of an instrument of ratification, acceptance or accession;
    3. any date of entry into force of this Convention in accordance with Articles 36 and 37 thereof;
    4. any notification received in pursuance of the provisions of paragraph 2 of Article 19;
    5. any communication received in pursuance of the provisions of paragraph 4 of Article 21;
    6. any notification received in pursuance of the provisions of paragraph 1 of Article 24;
    7. the withdrawal of any notification made in pursuance of the provisions of paragraph 4 of Article 24;
    8. any notification received in pursuance of the provisions of paragraph 2 of Article 28;
    9. any notification received in pursuance of the provisions of paragraph 3 or Article 37;
    10. any declaration received in pursuance of the provisions of Article 38;
    11. any notification received in pursuance of the provisions of Article 40 and the date on which denunciation takes effect.

    In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
    Done at Basle, this 16th day of May 1972, in English and French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each of the signatory and acceding States.

Annex

    The grounds of jurisdiction referred to in paragraph 3, sub-paragraph a, of Article 20, paragraph 2 of Article 24 and paragraph 3, sub-paragraph b, of Article 25 are the following:

    1. the presence in the territory of the State of the forum of property belonging to the defendant, or the seizure by the plaintiff of property situated there, unless:
      • the action is brought to assert proprietary or possessory rights in that property, or arises from another issue relating to such property; or
      • the property constitutes the security for a debt which is the subject-matter of the action;
    2. the nationality of the plaintiff;
    3. the domicile, habitual residence or ordinary residence of the plaintiff within the territory of the State of the forum unless the assumption of jurisdiction on such a ground is permitted by way of an exception made on account of the particular subject-matter of a class of contracts;
    4. the fact that the defendant carried on business within the territory of the State of the forum, unless the action arises from that business;
    5. a unilateral specification of the forum by the plaintiff, particularly in an invoice.

    A legal person shall be considered to have its domicile or habitual residence where it has its seat, registered office or principal place of business.

 

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