CORE Metadata, citation and similar papers at core.ac.uk Provided by Humanities Commons EVIDENCE AND BURDEN OF PROOF IN FOREIGN SOVEREIGN IMMUNITY LITIGATION BOOKS BY PETER FRITZ WALTER CREATIVE-C LEARNING: THE INNOVATIVE KINDERGARTEN TAO TE CHING (ENGLISH AND GERMAN TRANSLATIONS) DAS DAO DER STAATSFÜHRUNG UND STRATEGIE (GERMAN) ÉCRITS POÉTIQUES (FRENCH) ESSAYS ON LAW, POLICY, AND PSYCHIATRY (14 VOLUMES) EVIDENCE AND BURDEN OF PROOF IN SOVEREIGN IMMUNITY LITIGATION: A PROCEDURAL GUIDE FOR INTERNATIONAL LAWYERS AND GOVERNMENT COUNSEL (DOCTORAL THESIS) GREAT MINDS SERIES (11 VOLUMES) INTEGRATE YOUR EMOTIONS: A GUIDE TO EMOTIONAL WHOLENESS LITIGATION PRACTICE AND BURDEN OF PROOF UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT, 1976: A PROCEDURAL GUIDE FOR INTERNATIONAL LAWYERS IN THE UNITED STATES AND CANADA POETIC WRITINGS 1990-2010 (STORIES, PAMPHLETS, POEMS, ESSAYS) POETISCHE SCHRIFTEN (GERMAN) SCHOLARLY ARTICLES (21 VOLUMES) SHAMANIC WISDOM MEETS THE WESTERN MIND THE 12 ANGULAR POINTS OF SOCIAL JUSTICE AND PEACE THE BETTER LIFE: TRANSFORMING YOURSELF FROM INSIDE OUT THE ENERGY NATURE OF HUMAN EMOTIONS AND SEXUAL ATTRACTION: A SYSTEMIC ANALYSIS OF EMOTIONAL IDENTITY IN THE PROCESS OF THE HUMAN SEXUAL RESPONSE THE LEADERSHIP I CHING: YOUR DAILY COMPANION FOR PRACTICAL GUIDANCE THE NEW PARADIGM SERIES (BOOK REVIEWS, 3 VOLUMES) THE VIBRANT NATURE OF LIFE: A SCIENCE-BASED PATHWAY FOR A BETTER, RICHER, AND MORE ABUNDANT LIFE WALTER’S CAREER AND LEADERSHIP SERIES (3 VOLUMES) EVIDENCE AND BURDEN OF PROOF IN FOREIGN SOVEREIGN IMMUNITY LITIGATION A Procedural Guide for International Lawyers and Government Counsel Doctoral Thesis Dr. Peter Fritz Walter Published by Sirius-C Media Galaxy LLC 3511 Silverside Road, Suite 105, Wilmington 19380, Delaware, USA ©2017 Peter Fritz Walter. Some rights reserved. Creative Commons Attribution 4.0 International License This publication may be distributed, used for an adaptation or for derivative works, also for commercial purposes, as long as the rights of the author are attributed. The attribution must be given to the best of the user’s ability with the information available. Third party licenses or copyright of quoted resources are untouched by this license and remain under their own license. The moral right of the author has been asserted Set in Palatino Designed by Peter Fritz Walter Humanities Commons Edition, 2017 Publishing Categories 1. Law: International / 2. Law: Civil Procedure 3. Law: Business and Financial Publisher Contact Information [email protected] http://sirius-c-publishing.com Author Contact Information [email protected] About Dr. Peter Fritz Walter http://peterfritzwalter.com Abstract ‘Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Procedural Guide for International Lawyers and Government Counsel,’ doctoral thesis by Dr. Peter Fritz Walter, is the first specialized and practically useful analysis of the evidence problems and the burden of proof in matters of foreign sovereign immunity litigation, both regarding jurisdictional immunities and immunity from execution. The monograph is a comparative law analysis that spans six of the seven existing national statutes on foreign sovereign immunity, starting with the United States’ Foreign Sovereign Immunities Act, 1976, to the Canadian State Immunity Act, 1982. The study concludes in demonstrating two distinct rules of the burden of proof, for each kind of immunity; the rules are widely uniform, and were corroborated by case law and scholarly opinion in all of the examined jurisdictions. They can be said to form today rules of international law. The monograph is of high practical value for litigation lawyers and government counsel struggling with evidence problems regarding foreign sovereign immunity. It can be taken as a reference guide for solving the evidence problems in those trials, and as such is a precious asset in any international law library. The only titles that in scope, depth and size can be compared with the present study are already quite out of date, and they have, if ever, only randomly dealt with the specific procedural problems of evidence and the burden of proof in international sovereign immunity litigation. To the late Professor Louis B. Sohn The author’s profits from this book are being donated to charity. CONTENTS Restrictive Immunity and Burden of Proof! 13 A Complex Matter! 25 Evidence and Burden of Proof! 49 Introduction! 49 Jurisdiction and Competence! 53 Statute and Law! 56 Fact in Issue! 57 Burden of Proof! 61 The Evidential Burden! 75 Introduction Notion and Function Standard of Proof Incidence The Persuasive Burden! 85 Standard of Proof Notion and Function Incidence Summary! 99 The Evidential Burden The Persuasive Burden The Foreign Sovereign Immunities Act of 1976 (USA)! 115 Introduction! 115 Importance of the Act! 120 Construction of the Act! 124 The House Report! 127 The Burden of Proof Corrective Case Law Evaluation Procedural Questions! 134 EVIDENCE AND BURDEN OF PROOF IN FOREIGN SOVEREIGN IMMUNITY LITIGATION Subject Matter Jurisdiction Personal Jurisdiction Minimal Contacts Service of Process Default Judgment Definitions The Legal Status of Romanian Bank The Legal Status of MASIN Credibility of the Affidavit Formal Requirements Regarding the Affidavit Conclusion Jurisdictional Immunity! 175 Rule-and-Exception Construction The House Report Evidence Rule Ad (1) Ad (2) Ad (3) The Immunity Exceptions! 194 Immunity Waver General Considerations and Burden of Proof Arbitration Clauses International Treaties Conclusion Commercial Activity Clause 1 Clause 2 Clause 3 Expropriation in Violation of International Law Expropriation in Violation of International Law The Minimal Contacts Requirements Conclusion Immovable Property Noncommercial Tort Minimal Contacts or Nexus Causality Scope of Employment Exception Conclusion Core Areas of Sovereign Immunity! 275 8 CONTENTS Overview Foreign Affairs Interior Affairs Police Actions Actions for the Protection of Natural Resources The Price Fixing Procedure Standards of International Law The Court of Appeals Judgment Budgetary Activity National Defense Conclusion Foreign Affairs Internal Affairs Budgetary Activity National Defense Immunity from Execution! 344 Types of Execution Measures The Allocation of the Burden of Proof The Exceptions! 351 The Waiver Exception Usibus Destinata Relationship between §1609 and §1610 Relationship between §1610 and §1611 Conclusion Conclusion! 385 Immunity from Jurisdiction Immunity from Execution The State Immunity Act 1978 (United Kingdom)! 389 Introduction! 389 Construction of the Act! 398 Immunity from Jurisdiction! 400 General Considerations The Rule and Exception Principle The Restrictive Immunity Doctrine Examination of the Precedents Examination of the Restrictive Immunity Doctrine A New Restrictive Immunity Rule It is a New Independent Rule 9 EVIDENCE AND BURDEN OF PROOF IN FOREIGN SOVEREIGN IMMUNITY LITIGATION I Congreso Del Partido Separate Entities of a Foreign State Conclusion Immunity from Execution! 452 Conclusion! 462 Immunity from Jurisdiction Immunity from Execution The State Immunity Act, 1979 (Singapore)! 467 Introduction! 467 Application of British Case Law! 468 The Burden of Proof! 469 Immunity from Jurisdiction The Burden of Proof for Immunity from Execution The State Immunity Ordinance, 1981 (Pakistan)! 477 Introduction! 477 The Point of Departure Foreign Sovereign Immunity in India India’s Internal Legislation The Relationship between Internal Law and International Law Conclusion Foreign Sovereign Immunity in Pakistan Introduction Historical Development of Foreign Sovereign Immunity The Relation between Municipal Law and International Law The State Immunity Ordinance, 1981 The Foreign States Immunities Act 87, 1981 (South Africa)! 521 Introduction! 521 Immunity from Jurisdiction! 524 Generalities The Precedent I Congreso del Partido Separate Entities Immunity from Execution! 529 Conclusion! 534 The State Immunity Act, 1982 (Canada)! 537 Introduction! 537 10 CONTENTS Construction of the Act! 553 Immunity from Jurisdiction! 556 Immunity from Execution! 566 Conclusion! 569 Conclusion / Theses! 573 The Burden of Proof for Immunity from Jurisdiction The Burden of Proof for Immunity from Execution The Means of Proof Summary Theses! 581 The Unasked Question! 587 Abbreviations! 595 Precedents! 599 Bibliography! 611 Statutes! 635 FSIA 1976 (USA)! 635 STIA 1978 (UK)! 648 Annex 1! 663 Conclusion Générale L’immunité de juridiction L’immunité d’exécution Thèses Annex 2! 675 Stichworte Einleitung! 675 I. Beweislastverteilung nach staatlichen Immunitätsregeln! 681 1. USA: Foreign Sovereign Immunities Act (FSIA), 1976 2. Grossbritannien: Der State Immunity Act von 1978 und die alte Rechtslage (insbesondere die Entscheidung ‘I Congreso del Partido’ des House of Lords vom 16.7.1981 II. Beweislastverteilung nach Völkerrecht! 687 1. Rechtsprechung des Bundesverfassungsgerichts 11 EVIDENCE AND BURDEN OF PROOF IN FOREIGN SOVEREIGN IMMUNITY LITIGATION 2. Europäische Immunitätskonvention von 1972 3. Draft Convention der International Law Association 4. Bemühungen der International Law Commission Schlussbetrachtung! 703 Personal Notes! 705 12 RESTRICTIVE IMMUNITY AND BURDEN OF PROOF Preface Two hundred years ago, governments rarely entered the international marketplace for purchasing goods; they manufactured all the goods and materials needed for their governmental purposes. However, this situation changed during the 19th century, with the emergence of world trade. Accordingly, international