Implied Consent to Exercise of Jurisdiction

253 International Law Commission, Commentary on Draft Articles on Jurisdictional Immunities of States and Their Property (1991), draft Article 7, para. 8.

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Implied consent, also known as constructive consent, refers to a State present its submission to the exercise jurisdiction to a court of another State via implementation of specific conducts.

The expression of consent or its communication must be explicit. Although consent cannot be presumed to exist by sheer implication, nor by mere silence, acquiescence or inaction on the part of the State, but it could be evidenced by positive conduct of that State.²⁵⁴ In point of fact, the expression of consent either in writing or by conduct entails practically the same results. However, in view of the fact that implied consent is not expressed in written or oral form, but rather by the court‘s determination on the conduct of the State, it usually demands strict statutory circumstances, such as

‗participation in an action‘ and ‗making a counterclaim‘.

A precedent conveys the view that once a foreign State engaged in the activities of private-law character, it could be regarded as waiver of immunity in an implied way.

Obviously, this view misunderstood what a real implied consent is. Because the conduct of private-law character a foreign State performed usually happened before the litigation, but the implied consent happened in the process of the litigation.

Moreover, while a foreign State does not have the intention of submission to jurisdiction of a national court when it performs the conduct in the same manner as a private person, but if a foreign State carries out certain actions in litigation, it proves that the State intends to waive its immunity before a national court. As the international practice shows that,

―The State against which jurisdiction is to be exercised does not consent, or is not willing to submit to the jurisdiction. This unwillingness or absence of consent is generally assumed, unless the contrary is indicated. The court exercising jurisdiction against an absent foreign State cannot and does not generally assume or presume that there is consent or willingness to submit to its jurisdiction. There must be proof or evidence of consent to satisfy the exercise of existing jurisdiction or competence against another State.‖²⁵⁵

254 International Law Commission, Commentary on Draft Articles on Jurisdictional Immunities of States and Their Property (1991), draft Article 8, para. 1.

255 International Law Commission, Commentary on Draft Articles on Jurisdictional Immunities of States and Their Property (1991), draft Article 7, para. 4.

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There are slight variations in the expression of implied consent in different countries. However, the content of the implied consent is broadly the same. The UN Convention on Jurisdictional Immunities of States and Their Property provides the cases of implied consent in Article 8 ‗effect of participation in a proceeding before a court‘ and Article 9 ‗counterclaims‘.

(1) Institute Proceedings

The Article 8 (1) (a) of the UN Convention on State Immunity prescribes that,

―A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State if it has instituted the proceeding.‖

This provision points out one evident form of conduct amounting to the expression of consent consists of the act of bringing an action or instituting a legal proceeding before a court of another State. By becoming a plaintiff, a State intends to seek judicial relief from the forum State. It manifests that the claimant State willingly put its sovereignty under the jurisdiction of the court of another State, which clearly constitutes clear evidence of that Court‘s exercise of jurisdiction.

In international litigations, sovereign States usually appears as the defendant rather than plaintiff. In history, however, there have been some cases where an authority has filed a lawsuit in the court of another State. For instance, in 1955, the case Republic of China v. Chuka Newspaper Co. Ltd.²⁵⁶, the claimant Republic of China (Taiwan) brought an action against Chuka Newspaper for a loan repayment before a court of Japan. But the defendant Company objected the jurisdiction of the court and to the claim of the Ambassador to represent the Republic of China, contending that ‗under customary international law a State cannot exercise jurisdiction over another‘. The District Court of Tokyo, Japan holds that the plaintiff Republic has waived its immunity by commencing the action. The Court said:

―Under customary international law, a State is immune from the jurisdiction of foreign courts, unless it voluntarily submits to the jurisdiction of the court concerned. Such exception is generally made by a treaty or by express consent of the State concerned. …… In the instant case plaintiff waived this privilege by appearing voluntarily before this Court. Therefore the Court may properly exercise jurisdiction over the case.‖

256 See: Republic of China v. Chuka Newspaper Co Ltd, Japan, District Court of Tokyo, (1955) 23 ILR 210.

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It demonstrated that instituting a legal proceeding constitutes the implied consent which can remove the bar of immunity.

(2) Intervene Proceedings

The Article 8 (1) (b) of the UN Convention on State Immunity provides that,

―A State cannot invoke immunity from jurisdiction in a proceeding before a court of another State if it has intervened in the proceeding or taken any other step relating to the merits.‖

This provision illustrates that a State is precluded from invoking immunity in relation to a particular proceeding if it has intervened in the proceeding or taken any other step relating to the merits. The type of intervention to which Article 8 (1) (b) refers is specifically intervention on the merits.

Perhaps a State would be unfamiliar with certain facts on which a claim to immunity can be based until after it intervened in the proceeding or took any other step relating to the merits. In such cases, the State still has the opportunity to invoke immunity. It depends on the two conditions. First, the State must satisfy the court that it could only have acquired knowledge of the facts justifying a claim of immunity after it had intervened in the proceeding or had taken steps relatingto the merits of the case. Secondly, the State must provide such proof at the earliest possible moment.

Generally, a State enters a conditional appearance or appears expressly to contest or challenge jurisdiction on the grounds of sovereign immunity cannot be construed as implied consent to the exercise of jurisdiction of courts of another State. In accordance with the consensus formed by international practice, the following exceptions shall not be deemed to be consent.

(i) A State enters an appearance or intervenes in a proceeding before a court of another State for the purpose of invoking immunity;

(ii) A State intervenes in a proceeding for the purpose of asserting a right or interest in property at issue in the proceeding;

(iii) A representative of a State appears before a court of another State as a witness;

(iv) A State fails to enter an appearance in a proceeding before a court of another State.

The exceptions confirmed by the Article 8 (2) (3) (4) of the UN Convention on State Immunity effectively safeguard the immunity rights of the defendant State and prevent the forum State from expanding its jurisdiction by interpreting the implied consent.

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(3) Make Counterclaims

The counterclaim refers to, in the same action, a claim for relief filed against an opposing party after the original claim is filed.²⁵⁷ Commonly, it is a claim brought by a defendant in response to an original or principal claim. The notion of ‗counterclaim‘

presupposes the prior existence or institution of a claim. The structure of counterclaim can be illustrated by the diagram as follows,

Making a counterclaim can be considered as taking a step relating to the merits of the proceeding within the meaning of Article 8 (1). Therefore, most of legislations on State immunity provide that counterclaims constitute a kind of implied consent. It has basically become an international shared understanding, so the UN Convention on State Immunity gives two circumstances about this issue. The Article 9 (1) and (2) mainly introduce ‗counterclaims against a State‘, and the Article 9 (3) is about

‗counterclaims by a State‘.

The counterclaims against a State argues that a State cannot invoke immunity from the jurisdiction of the court of another State in respect of any counterclaims caused by

257 See: 张卫平：《民事诉讼法》，法律出版社2009年版，第298页。

The Same Relationship and

Fcats Principal Claim

Counter Claim

The Defendant of Principal Claim (The Plaintiff of Counter Claim) The Plaintiff of

Principal Claim (The Defendant of

Counter Claim)

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the same legal relationship or facts as the principal claim which is instituted or intervened by the former State . In fact, when a State institutes a proceeding or intervenes to present a claim in a proceeding, it has voluntarily waived the immunity from jurisdiction of court of another State according to Article 8 (1). By virtue of the concept of counterclaims, it is not difficult to understand that Article 9 (1) and (2) follows logically from Article 8 (1).

The counterclaims by a State describes where a State itself makes a counterclaim in a proceeding instituted against it before a court of another State, the former State is deemed to consent to the exercise of jurisdiction by that court with respect not only to the counterclaim brought by the Stats itself, but also to the principal claim against it.²⁵⁸