447 / 532
431
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
broadly enough to be able to encompass developments in the international law of
immunities. While this turn towards the restrictive doctrine was overall a positive
development, as it brought the Czech position in line with the general international
standard, the rather rudimentary reasoning through which the Supreme Court carried
out this major change was somewhat disappointing.
41
Consequently, beyond the
basic conceptualization of State immunity as restricted, the specific parameters of the
new position to State immunities are in many aspects still somewhat unclear, and the
Supreme Court has yet to provide more elaborated and nuanced guidance on many
particular issues. Remarkably, however, Czech legal scholarship maintained even
after 2008 that the approach to immunity in the Czech Republic was governed by
the absolute immunity doctrine.
42
The new 2012 Act now specifically defines State
immunity as restricted to
acta jure imperii
.
43
3.3 Conceptualization of State Immunity in Czech Courts
Generally, the current conceptualization of State immunity doctrine in Czech
courts, as expressed in the leading cases, rests on the following basic elements: (1)
State immunity derives from the independence and sovereign equality of States –
par in parem non habet jurisdictionem.
(2) State immunity is not absolute; a foreign
State is exempted from the jurisdiction of Czech courts only with respect to acts
of sovereign public authority –
acta jure imperii
. The distinction between
acta jure
imperii
and acts not exercised as a sovereign public authority –
acta jure gestionis
– depends
on the position of the foreign State in the particular legal relationship: whether the
relationship is based on the legal equality of its participants or whether the foreign
State acts as a sovereign bearer of public authority. (3) The limited scope of State
immunity reflects its functional nature.
3.3.1 Legal Basis for State Immunity
The Supreme Court has in its decisions explicitly articulated its position that
the basis for State immunity is the independence and equality of States, as expressed
in the maxim
par in parem non habet imperium
(an equal has no authority over an
Republic dated 27 August 1987, No. Cpjf 27/86; Ruling of the High Court in Prague, dated 31
August 1995, No. 10 Cmo 418/95-16; Caban P.,
Jurisdikční imunity států
, 143-144; Balaš V. and
Pauknerová M., The Czechoslovak Approach to the Draft Convention on Jurisdictional Immunities of
States and Their Property, 878-879; Pokorný M.,
Zákon o mezinárodním právu soukromém a procesním:
Komentář
, 74.
41
In fact, the Czech Supreme Court articulated the new restrictive approach to immunity in a rather
sweeping manner and it did so in an employment context, where the situation is much more
complicated than in strictly commercial cases. States continue to recognize immunity for certain
categories of employment disputes.
See
Section 3.4.1 below.
42
Dobiáš P. (ed),
Zákon o mezinárodním právu soukromém: Komentář [Act on Private International Law:
Commentary]
(1
st
ed, Leges 2013), 61; Pauknerová M. and Rozehnalová N.,
Zákon o mezinárodním
právu soukromém: Komentář [Act on Private International Law: Commentary]
(1
st
ed, Wolters Kluwer ČR
2013), 69.
43
The text of § 7 Sec. 1 of the 2012 Act is reproduced at ft 31 above.