In the commercial transaction proceedings concerning State immunity, no special requirement was demanded for the identity of plaintiff. From the perspective of the forum State, the plaintiff may be either a native or a foreigner, which imposes no
88
decisive influence on the proceedings. However, in judicial practices, the difference in identity of the plaintiff may influence the procedural rules and law application in the proceedings to a certain extent.
2.1 THE NATIVES AS PLAINTIFF
In cases where a native is the plaintiff, the court of forum State normally determines the capacity to action of the plaintiff in accordance with the procedural requirements of its national civil procedural law.
Theoretically, a plaintiff in civil litigation can be divided into plaintiffs in form and plaintiffs in substance. A plaintiff in form refers to those identified on the complaint;
it is purely a litigious concept with no association with the substantial legal relations.
A plaintiff in substance normally is a subject of a civil relationship, and has rights and obligations in substantial law. In line with the theory of civil procedural law, before a court made a judgment, the rights and obligations of the parties are still in a unresolved state, so the court does not need to, at the beginning of a proceeding, require the plaintiff to prove that the plaintiff himself is a subject of a civil relationship and therefore has the rights in or takes the obligations of the matters of action. Otherwise, it may lead up to the phenomenon that the court usually rejects to settle civil disputes, and may harm the plaintiff in exercise of the right of action.
Therefore, plaintiffs in commercial transaction proceedings concerning State immunity also mainly refer to plaintiffs in form.
Although a plaintiff in form results from subjective claims in an action, however, for it has the function of initiating a proceeding, it is necessary to consider the plaintiff's civil capacity to action, including the capacity of rights to action and the capacity to engage in action.
A plaintiff's capacity of rights to action refers to the legal standing required for plaintiffs of civil actions to exercise rights and take obligations. Generally, the capacity of rights to action is merely an abstract standing in law; a person with such standing will not necessarily become a plaintiff in litigation, but may actually become a plaintiff by filing an action. In addition, the capacity of rights to action is one of the constructive conditions for litigation, and therefore only the plaintiff has such capacity for rights to action, he may initiate an action. If the plaintiff lacks the capacity on the
89
occasion of initiating an action, the court has to reject the claims of that incompetent plaintiff.
A plaintiff's capacity of rights to action is closely related to their capacity for civil rights. In principle, the capacity of rights of action and the capacity for civil rights are consistent with each other to a great extent. The capacity for rights of action normally is not separable from the identification of the standing of a subject in substantial law.
If a plaintiff has the capacity of rights to action but does not have the capacity for civil rights, the rights or obligations granted by the decision of the court cannot be implemented. Therefore, a plaintiff having the capacity of rights to action generally has the capacity for civil rights. However, there are exceptions in certain circumstances in which the capacity of rights to action may exist separately from the capacity for civil rights. For example, in commercial transactions, the legal personality of some companies may be invalidated because of ‗piercing the corporate veil,‘ but this does not prevent such companies from having the capacity of rights to action.
A plaintiff's capacity to engage in action mainly refers to the standing that the plaintiff can take part in the litigation by himself to exercise litigation rights and take litigation obligations. In practice, a plaintiff normally has both the capacity of rights to action and the capacity to engage in action. However, there are cases in which the plaintiff has the capacity of rights to action but does not have the capacity to engage in action. If the plaintiff has the capacity of rights to action but does not have the capacity to sue, the plaintiff‘s statutory agent must take part in the litigation on the plaintiff‘s behalf. The capacity of rights to action and capacity to engage in action of natural persons may exist for different periods of time, while those of legal persons or other organization exist for the same period of time.
Generally, a person having the capacity for civil conducts has the capacity to sue or be sued. However, these capacities are different in classification. The capacity for civil conducts of natural persons is classified into three categories, including no capacity for civil conducts, limited capacity for civil conducts, and full capacity for civil conducts. While the capacity to engage in action is classified into two categories:
full capacity or no capacity to engage in action. In civil actions, only those having full capacity for civil conducts have the capacity to engage in action; while those having no capacity for civil conducts or limited capacity for civil conducts do not have the capacity to sue or be sued.
90
2.2 THE FOREIGNERS AS PLAINTIFF
Unlike the cases in which a native is the plaintiff, on the occasion that a foreigner is the plaintiff, in the process of determining the capacity to action of the plaintiff, the court normally needs to examine the litigious status of the foreigner at first, and then determines their capacity to action.
In principle, if a subject in an international civil action involves foreign elements, the issue of the foreigner‘s status in litigation must be resolved at first. In this respect, international practice is generally accepted the doctrine of national treatment which refers a state should treat foreigners in the same way as it treats natives.138 This is a fundamental principle that is most widely adopted in governing the status in litigation of foreigners. The Article 26 of the International Covenant on Civil and Political Rights adopted by the United Nations in December 1966 indirectly confirmed the doctrine of national treatment in civil actions.
―All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.‖
In fact, the doctrine of national treatment is universally recognized and acknowledged in international conventions and national legislation. It is intended to safeguard the equal status of the litigious parties in civil litigation, thereby avoiding discriminatory treatment arising from the identity. Indeed, in consideration of the difference in ideology, political system, legal tradition, and social customs among States, the divergence in litigation system is inevitable. The doctrine of national treatment is usually based on the reciprocity between States.
It is a complex question to determine the capacity to action of foreigners. In many cases, the capacity to action in international civil actions is classified as a procedural matter. According to the principle of applying the procedural rules of forum State, the
138See: 杜新丽主编：《国际民事诉讼与商事仲裁》，中国政法大学出版社2009年版，第12页~第15页。
91
capacity to action of foreigners is generally governed by the procedural law of forum State. However, as the situation in the international community has changed drastically, this position is open to discussion currently. There is a viewpoint that, although the States universally provides the capacity to engage in action in civil procedural law, it does not necessarily to take the capacity to engage in action as a procedural matter. Another viewpoint holds that litigation procedures are also subject to conflict of rules, and the governing law shall be determined according to the doctrine of the most significant relationship139, therefore, this issue shall be governed by lex civilis personalis. Moreover, for the purpose of protecting of the stability of civil relations and the security of commercial transactions, in the event that a person does not have the capacity to engage in action in lex civilis personalis, but has the capacity to engage in action pursuant to the law of forum State, the capacity to engage in action of foreigners should be acknowledged.140
In addition, the capacity to engage in action of foreigners is exposed to another variable, that is, the public policy of forum State. Sometimes, the public policy constitutes an obstacle to the capacity to engage in action of the plaintiff. This primarily exists in the following two cases: Firstly, the substantial rights of foreigners in specific matters are denied, so it is necessary to limit the capacity to engage in action of foreigners in corresponding fields. For example, the Article 8 of Land Administration Law of China prescribes the public ownership of land. This implies that foreigners are forbidden to own land in China in person. As a result, foreigners cannot initiate lawsuits with respect to disputes on land ownership in China. Secondly, the capacity to engage in action of foreigners is directly denied by law or statute. For example, according to English case law, in the state of war, foreigners from the enemy States are forbidden to file lawsuits before the courts of England, unless a royal privilege is granted.141
The commercial transaction proceedings concerning State immunity basically involve transaction or contractual relations between a State and a private, so the plaintiff of the litigation normally has full capacity of rights to action and capacity to engage in action.
139See: 李双元、谢石松：《国际民事诉讼法程序概论》，武汉大学出版社2001年版，第74页~第79页。
140See: 李旺：《国际民事诉讼法》，清华大学出版社2011年版，第61页。
141See: J. H. C. Morris, Dicey and Morris on the Conflict of Laws, Stevens & Sons Limited (1980), pp151~154.
92