CYIL 2014

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction.” The Czech position fundamentally corresponds to the predominant nature-of the-act approach. The determination of the nature of the act is essentially based on continental legal systems’ paradigmatic distinction between public law and private law. Specifically, in accordance with the Czech Constitutional and Supreme Courts’ preferred theory on the distinction between private and public law (in legal theory so-called Subordinationstheorie ), 62 acta jure gestionis is conceptualized as relating to a private-law relationship based on equality of its participants, and acta jure imperii to a public-law relationship based on subordination. Although the general methodology is based on this juridical nature of the particular legal relationship, on closer reading, however, it becomes clear that the Supreme Court has included in its approach quite an unusual element, which is likely to serve as a corrective tool to any formalistic application of the nature-of-the-act test. 3.3.3 State Immunity as Functional Immunity According to the Czech Supreme Court, State immunity is “functional”, which is the reason for it being limited. In this respect, Czech practice strikingly diverges from other international practice. The standard international terminology labels limited State immunity “restricted” (as oppose to absolute), while the term “functional” is reserved for the domain of immunity of individuals acting on behalf of a State. 63 In that area, “function” refers to the question of whether an act was performed in a service of a State, i.e. in an official function, or not. 64 The Supreme Court provides no guidance on this divergence. 65 A reader may wonder how this at first look a slight difference in vocabulary could make any 62 See, for example, Ruling of the Constitutional Court of the Czech Republic dated 25 November 1993, case No. II ÚS 75/93; Ruling of the Constitutional Court of the Czech Republic dated 24 February 1999, case No. I ÚS 505/98; Ruling of the Constitutional Court of the Czech Republic dated 20 June 2013, case No. Pl. ÚS 36/11; Ruling of the Supreme Court of the Czech Republic dated 28 July 2011, case No. 33 Cdo 903/2010. However, note the divergent practice of the Supreme Administrative Court ( see, for example, Judgment of the Supreme Administrative Court of the Czech Republic dated 27 September 2006, No. 2 As 50/2005-53; Judgment of the Supreme Administrative Court of the Czech Republic dated 22 August 2007, No. 2 As 88/2006-60) and the fact that the new Czech Civil Code effective as of 1 January 2014 is, according to its bill, based on a different theory (so-called Subjektstheorie ) of distinguishing between private law and public law. Důvodová zpráva k novému občanskému zákoníku. Konsolidovaná verze [Government Report to the New Civil Code. Consolidated version], available on the website of the Ministry of Justice of the Czech Republic at www.obcanskyzakonik.justice.cz/fileadmin/ Duvodova-zprava-NOZ-konsolidovana-verze.pdf (accessed on 16 July 2014), 1, 27-28. 63 The term “functional” is also used in relation to immunities of organs, agencies and other instrumentalities and entities States and immunities of international organizations, but these will be left aside in this text. 64 See Fox H. and Webb P., The Law of State Immunity, 537; Doehring K., Völkerrecht: ein Lehrbuch (Hüthig Jehle Rehm 2004) , 290 ff. In fact the present author was unable to identify any other judicial system that would refer to State immunity as functional. 65 Admittedly, the term “functional immunity” with respect to State immunity has appeared in some of the domestic scholarly literature both before and after the Polish Embassy Driver Case, however

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