On the ratification of the United Nations Convention on Jurisdictional Immunities of States and Their Property

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Law of the Republic of Kazakhstan dated October 27, 2009 No. 195-IV

To ratify the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted in New York on December 2, 2004.

President of the Republic of Kazakhstan N. Nazarbayev

UNITED NATIONS CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES AND THEIR PROPERTY

United Nations 2004

States - The Parties to this Convention, Considering that the jurisdictional immunities of States and their property have been generally recognized as one of the principles of customary international law, taking into account the principles of international law embodied in the Charter of the United Nations, believing that the international convention on jurisdictional immunities of States and their property will strengthen the rule of law and enhance legal certainty, especially in the relations of States with individuals and legal entities, and will contribute to the codification and development of international law and the harmonization of practice in this field, taking into account changes in State practice with regard to jurisdictional immunities of States and their property, Affirming that customary international law will continue to regulate matters not provided for by the provisions of this Convention, have agreed as follows:

Part I Introduction

Article 1 Scope of this Convention

This Convention applies to the immunity of a State and its property from the jurisdiction of the courts of another State.

Article 2 Use of terms

1. For the purposes of this Convention: (a) "Court" means any organ of the State, regardless of its name, authorized to exercise the functions of justice; (b) "State" means: i) the State and its various governing bodies; ii) the constituent parts of a federal State or political subdivisions of the State that are authorized to act in the exercise of sovereign power and act in this capacity.; (iii) Institutions or institutions of the State or other entities to the extent that they are authorized to perform and actually perform actions in the exercise of the sovereign authority of the State; (iv) Representatives of the State acting in this capacity; (c) "commercial transaction" means: (i) Any commercial contract or transaction for the purchase and sale of goods or for the provision of services; (ii) any loan contract or other financial transaction, including any obligation to guarantee or compensate in respect of any such loan or transaction; (iii) Any other contract or transaction of a commercial, industrial, commercial or professional nature, with the exception of employment contracts. 2. In determining whether a contract or transaction is a "commercial transaction" in accordance with paragraph 1 (c), the nature of the contract or transaction should first be considered, but their purpose should also be taken into account if the parties to the contract or transaction have agreed to this, or if, according to the jurisprudence of the Court of Justice, this purpose has relation to determining the non-commercial nature of this contract or transaction. 3. The provisions of paragraphs 1 and 2 concerning the use of terms in this Convention are without prejudice to the use of these terms or the meanings that may be assigned to them in other international instruments or in the domestic law of any State.

Article 3 Privileges and immunities not affected by this Convention

1. This Convention is without prejudice to the privileges and immunities enjoyed by a State under international law in relation to the performance of the functions of: (a) its diplomatic missions, consular posts, special missions, representations to international organizations or delegations to organs of international organizations or to international conferences; and (b) persons belonging thereto. 2 This Convention is without prejudice to the privileges and immunities granted in accordance with international law to heads of State ratione personae. 3. This Convention is without prejudice to the immunities enjoyed by a State in accordance with international law in respect of aircraft or space objects owned or operated by a State.

Article 4 Non-retroactive effect of this Convention

Without prejudice to the application of any rules set forth in this Convention that apply to the jurisdictional immunities of States and their property by virtue of international law, regardless of these articles, this Convention does not apply to any question of the jurisdictional immunities of States or their property that arose in the course of proceedings against a State in a court of another State prior to the entry into force of by virtue of these articles for the States concerned.

Part II General principles

Article 5 State immunity

A State shall enjoy immunity, in respect of itself and its property, from the jurisdiction of the courts of another State, subject to the provisions of this Convention.

Article 6 Ways to ensure State immunity

1. A State shall ensure the immunity of States provided for in article 5 by refraining from exercising jurisdiction in proceedings before its courts in cases brought against another State and, to this end, shall ensure that its courts, on their own initiative, decide whether the immunity of another State is respected in accordance with article 5.2. Proceedings before a court of a State are considered to be initiated against another State if it is another State.: (a) Is designated as a party to such proceedings; (b) Is not identified as a party to the proceedings, but the proceedings are actually intended to affect the property, rights, interests or activities of such other State.

Article 7 Explicit consent to exercise jurisdiction

1. A State may not invoke immunity from jurisdiction in proceedings before a court of another State in respect of any matter or case if it has explicitly consented to the exercise of jurisdiction by that court in respect of such matter or case by virtue of: (a) An international agreement; (b) a written contract; or (c) a statement in court or a written communication in a specific proceeding. 2. The consent of a State to the application of the legislation of another State should not be understood as consent to the exercise of jurisdiction by the courts of that other State.

Article 8 Consequences of participation in court proceedings

1. A State may not invoke immunity from jurisdiction in proceedings before a court of another State if it: (a) initiated the proceedings itself; or (b) participated in the proceedings on the merits of the case or took any other action on the merits of the case. However, if a State proves in court that it could not have been aware of the facts that could serve as a basis for claiming immunity until it took such action, it may invoke immunity on the basis of these facts, provided that it does so as soon as possible. 2. A State shall not be considered as having consented to the exercise of jurisdiction by a court of another State if it enters into proceedings or takes any other action for the sole purpose of: (a) invoking immunity; or (b) provide evidence of their right or interest in the property concerned in the proceedings. 3. The appearance of a representative of a State in a court of another State to give evidence should not be understood as the consent of the first State to the exercise of jurisdiction by this court. 4. The non-participation of a State in a proceeding before a court of another State should not be understood as the consent of the first State to the exercise of jurisdiction by that court.

Article 9 Counterclaims

1. A State initiating proceedings before a court of another State may not invoke immunity from the jurisdiction of that court in respect of any counterclaim based on the same legal relationship or facts as the main claim. 2. A State intervening in proceedings before a court of another State to bring an action may not invoke immunity from the jurisdiction of that court in respect of any counterclaim based on the same legal relationship or facts as the claim of that State. 3. A State filing a counterclaim in proceedings brought against it before a court of another State may not invoke immunity from the jurisdiction of that court in respect of the main claim.

Part III Proceedings in which State immunity cannot be invoked

Article 10 Commercial transactions

1. If a State enters into a commercial transaction with a foreign natural or legal person and, by virtue of the applicable rules of private international law, disputes concerning that commercial transaction are subject to the jurisdiction of a court of another State, that State may not invoke immunity from jurisdiction in the proceedings arising out of that commercial transaction. 2. Paragraph 1 does not apply.: (a) In the case of a commercial transaction between States; or (b) if the parties to the commercial transaction have expressly agreed otherwise. 3. If a state-owned enterprise or other entity is established by the State, which has an independent legal personality and is capable of: (a) To bring a claim or be a defendant in a claim; and (b) to acquire, own, or possess and dispose of property, including property that that State transfers to its use or management, participates in proceedings related to a commercial transaction entered into by that entity, then immunity from jurisdiction which is used by this State is not affected.

Article 11 Employment contracts

1. Unless otherwise agreed by the States concerned, a State may not invoke immunity from jurisdiction in proceedings before a court of another State, which is normally competent to hear cases concerning an employment contract between that State and an individual regarding work that has been or is to be performed in whole or in part in the territory of that other State. 2. Paragraph 1 does not apply if: a) the employee has been hired to perform specific duties in the exercise of public authority; b) the employee is: i) a diplomatic agent, as defined in the 1961 Vienna Convention on Diplomatic Relations; ii) a consular official, as defined in the 1963 Vienna Convention on Consular Relations; iii) a diplomatic officer of permanent missions to international organizations, special missions, or hired to represent a State at international conferences; or (iv) any other person enjoying diplomatic immunity; (c) The subject of the proceedings is the hiring, resumption of employment or reinstatement of the said person; (d) The subject of the proceedings is the dismissal or termination of employment of an individual and, as determined by the Head of State, Head of Government or Minister of Foreign Affairs of the State of the employer, such proceedings will affect the security interests of that State; (e) the employee is a national of the State ofthe employer at the time of initiation of the proceedings, except in the case when this person has a permanent place of residence in the State of the court.; or (f) The State of the employer and the employee have agreed otherwise in writing, taking into account any considerations of public policy that confer exclusive jurisdiction on the courts of the State of the court by virtue of the merits of the proceedings.

Article 12 Personal injury and property damage

Unless otherwise agreed by the States concerned, a State may not invoke immunity from jurisdiction in proceedings before a court of another State, which is normally competent to hear cases concerning monetary compensation in the event of death or bodily injury to a person or damage to property or its loss as a result of an act or omission that is alleged to be assigned to the state, if such an action or omission took place in whole or in part on the territory of that other State and if the author of the action or omission was in that territory at the time of that action or omission.

Article 13 The right of ownership, possession and use of property

Unless otherwise agreed by the States concerned, a State may not invoke immunity from jurisdiction in proceedings before a court of another State, which normally has jurisdiction to hear cases concerning the establishment of: (a) Any rights or interests of that State in respect of immovable property located in the State of the court, in respect of its possession or use, or any obligation of that State arising from its interests in respect of such property, possession or use thereof; (b) Any rights or interests of that State with respect to movable or immovable property that arise from inheritance, gift, and mismanagement; or (c) any rights or interests of that State with respect to the management of property, such as trust property, bankrupt property, or company property in the event of liquidation.

Article 14 Intellectual and industrial property

Unless otherwise agreed by the States concerned, a State may not invoke immunity from jurisdiction in proceedings before a court of another State, which normally has jurisdiction to hear cases concerning: a) the establishment of any right of that State in respect of a patent, industrial design, trade or trade name, trademark, copyright or any other form of intellectual or industrial property that enjoys legal protection, including on a temporary basis, in the State of the court; or (b) an alleged violation by that State in the territory of the State of the court of a right of the nature specified in subparagraph (a), owned by a third party and protected in the State of the court.

Article 15 Participation in companies and other associations

1. A State may not invoke immunity from jurisdiction in proceedings before a court of another State, which is normally competent to hear cases concerning its participation in a company or other association, registered or unregistered as a legal entity, if the proceedings relate to the relationship between the State and the association or its other participants, provided that association: a) has participants other than States or international organizations; and (b) is registered or incorporated in accordance with the laws of the State of the court or has its main office or main business in that State. 2. However, a State may invoke immunity from jurisdiction in such proceedings if the States concerned have agreed to this, or if it has been agreed in writing between the parties to the dispute, or if provisions to this effect are contained in a document establishing such an association or regulating its activities.

Article 16 Vessels owned or operated by the State

1. Unless otherwise agreed by the States concerned, a State that owns or operates a ship may not invoke immunity from jurisdiction in proceedings before a court of another State that is normally competent to hear cases concerning the operation of that ship if, at the time of the occurrence of the fact that gave rise to the claim, that ship was used for other purposes. than government non-commercial purposes. 2. Paragraph 1 does not apply to military, auxiliary ships or other vessels owned or operated by the State and used, at this stage, exclusively for State non-commercial service. 3. Unless otherwise agreed by the States concerned, a State may not invoke immunity from jurisdiction in proceedings before a court of another State, which is normally competent to hear cases involving the carriage of goods on board a ship owned or operated by that State if, at the time of the occurrence of the fact that gave rise to the claim, that ship was used for other purposes. than government non-commercial purposes. 4. Paragraph 3 does not apply to any cargo carried on board ships referred to in paragraph 2, as well as to any cargo owned by the State and used or intended for use exclusively for State non-commercial purposes. 5. The State may use all protective measures, refer to the limitation period and limitation of liability, which are provided to private vessels and cargoes and their owners. 6. If, in any proceedings, a question arises about the State-owned and non-commercial nature of a ship owned or operated by a State or cargo owned by a State, a certificate issued by a diplomatic representative or other authorized body of that State and transmitted to the court is proof of that nature of the ship or cargo.

Article 17 Consequences of the arbitration agreement

If a State enters into a written agreement with a foreign natural or legal person to submit disputes concerning a commercial transaction to arbitration, that State cannot invoke immunity from jurisdiction in proceedings before a court of another State, which usually has jurisdiction to hear cases concerning: (a) The validity, interpretation, or application of the arbitration agreement; (b) the arbitration procedure; or (c) the confirmation or cancellation of the award, unless otherwise provided in the arbitration agreement.

Part IV State immunity from coercive measures in connection with court proceedings

Article 18 Immunity of States from coercive measures pending a judicial decision

No pre-judicial coercive measures, such as foreclosure or seizure, against State property may be taken in connection with proceedings before a court of another State, except in cases where and to the extent that: (a) The State has expressly agreed to take such measures as are indicated: (i) In an international agreement; (ii) in an arbitration agreement or in a written contract; or (iii) in a statement before a court or in a written communication after a dispute has arisen between the parties; or (b) The State has reserved or designated the property for the satisfaction of the claim that is the subject of these proceedings.

Article 19 Immunity of States from coercive measures after a judicial decision

No post-judgment coercive measures, such as foreclosure, arrest, or enforcement of a judgment, may be taken against State property in connection with proceedings before a court of another State, except in cases where and to the extent that: (a) The State has expressly agreed to take such measures as are indicated: (i) In an international agreement; (ii) in an arbitration agreement or in a written contract; or (iii) in a statement to a court or in a written communication after a dispute has arisen between the parties; either (b) the State has reserved or designated the property to satisfy the claim that is the subject of this proceeding; or (c) it has been established that the property is directly used or intended for use by the State for purposes other than State non-commercial purposes and is located on the territory of the State of the court, provided that enforcement measures can be taken after the court decision only in relation to property that has a connection with the entity against which the legal proceedings were directed.

Article 20 The effect of consent to the exercise of jurisdiction on the adoption of coercive measures

Where consent is required in accordance with articles 18 and 19 to take coercive measures, consent to exercise jurisdiction in accordance with article 7 does not imply consent to take coercive measures.

Article 21 Special categories of property

1. The following categories, in particular, of State property are not considered as property directly used or intended for use by the State for purposes other than State non-commercial purposes, in accordance with paragraph (c) of article 19: (a) property, including any bank account, used or intended for use in the performance of the functions of a diplomatic mission of the State or its consular offices, special missions, representative offices at international organizations or delegations to bodies of international organizations or at international conferences; b) property of a military nature or used or intended for use in the performance of military functions; c) property of the central bank or other financial authority of the State; d) property forming part of the cultural heritage of the State or part of its archives and not exhibited or not intended for sale; (e) Property forming part of an exhibition of objects of scientific, cultural or historical interest that is not on display or intended for sale. 2. Paragraph 1 is without prejudice to the provisions of article 18 and article 19 (a) and (b).

Part V Other provisions

Article 22 Service of documents on judicial proceedings

1. The service of documents on judicial proceedings by a court order or other document on the initiation of proceedings against the State is carried out: (a) In accordance with any applicable international convention in force for the State of the court and the State concerned; or (b) in accordance with any special agreement on the service of documents between the plaintiff and the State concerned, unless this is excluded by the law of the State of the court.; or (c) In the absence of such a convention or special agreement: (i) By sending through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or (ii) in any other way recognized by the State concerned, unless this is excluded by the law of the State of the court. 2. The service of the documents on the judicial proceedings referred to in paragraph 1 (c) (i) shall be deemed to have been carried out upon receipt of such documents by the Ministry of Foreign Affairs. 3. These documents are accompanied, if necessary, by a translation into the official language or one of the official languages of the relevant State. 4. No State which has participated in the proceedings on the merits of the case brought against it may then claim that the service of the documents relating to the proceedings was not made in accordance with the provisions of paragraphs 1 and 3.

Article 23 Decision in absentia

1. A decision in absentia shall not be rendered against the State unless the court has established that: (a) The requirements provided for in paragraphs 1 and 3 of article 22 have been met; (b) at least four months have elapsed from the date on which the court order or other document instituting proceedings was served or from the date on which such service is deemed to have been carried out in accordance with paragraphs 1 and 2 of article 22; and (c) this Convention does not prevent it exercise jurisdiction. 2. One copy of any default judgment rendered against a State, accompanied, if necessary, by a translation into the official language or into one of the official languages of the State concerned, shall be sent to it by one of the methods specified in paragraph 1 of article 22 and in accordance with the provisions of this paragraph. 3. The time limit for filing an application for revocation of a decision in absentia is at least four months and starts from the date when a copy of this decision was received or is considered received by the relevant State.

Article 24 Privileges and immunities during judicial proceedings

1. Any omission or refusal by a State to comply with a court order of another State requiring it to perform a certain act or refrain from performing it, or to provide any document or any other information for the purposes of the proceedings, shall not entail consequences other than those that may result from such conduct in relation to the merits of the case. In particular, that State is not fined or penalized for such omission or refusal. 2. A State is not required to provide any security, pledge or deposit, whatever they may be called, in order to guarantee payment of legal costs or expenses for any proceedings in which it is a defendant in a court of another State.

Part VI Final provisions

Article 25 Annex

The Annex to this Convention forms an integral part of the Convention.

Article 26 Other international agreements

Nothing in this Convention affects the rights and obligations of States Parties under existing international agreements related to the issues dealt with in this Convention as parties to these agreements.

Article 27 Dispute resolution

1. The Participating States shall seek to settle disputes concerning the interpretation or application of this Convention through negotiations. 2. Any dispute between two or more States Parties concerning the interpretation or application of this Convention that is not settled by negotiation within a period of six months shall, at the request of any of these States Parties, be submitted to arbitration. If, within six months from the date of the request for arbitration, these States Parties are unable to reach an agreement on the organization of the arbitration, the dispute may, at the request of any of these States Parties, be referred to the International Court of Justice in accordance with the Statute of the Court. 3. Each State Party may, at the time of signature, ratification, acceptance or approval of this Convention or upon accession thereto, declare that it does not consider itself bound by paragraph 2. Other States Parties will not be bound by paragraph 2 with respect to any State Party that has made such a reservation. 4. Any State Party that has made a reservation in accordance with paragraph 3 may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 28 Signature

This Convention is open for signature by all States until January 17, 2007 at United Nations Headquarters in New York.

Article 29 Ratification, acceptance, approval or accession

1. This Convention is subject to ratification, acceptance or approval. 2. This Convention remains open for accession by any State. 3. Instruments of ratification, acceptance, approval or accession shall be deposited with the Secretary-General of the United Nations.

Article 30 Entry into force

1. This Convention shall enter into force on the thirtieth day after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State that has ratified, accepted, approved or acceded to the Convention after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, the Convention enters into force on the thirtieth day after the deposit of its instrument of ratification, acceptance, approval or accession.

Article 31 Denunciation

1. Any State Party may denounce this Convention by written notification addressed to the Secretary-General of the United Nations. 2. The denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General of the United Nations. However, this Convention shall continue to apply to any question of the jurisdictional immunities of States or their property that has arisen in the course of proceedings against a State before a court of another State prior to the date on which the denunciation takes effect in respect of any of the States concerned. 3. The denunciation in no way affects the obligation of any State Party to fulfill any obligation set forth in this Convention that is effective for it under international law, regardless of this Convention.

Article 32 Depositary and notifications

1. The Secretary-General of the United Nations shall be the depositary of this Convention. 2. As the depositary of this Convention, the Secretary-General of the United Nations shall inform all States of the following: (a) The signature of this Convention and the deposit of instruments of ratification, acceptance, approval or accession or notifications of denunciation in accordance with articles 29 and 31; (b) The date of entry into force of this Convention in accordance with article 30; (c) Any other documents, notifications or communications relating to this Convention.

Article 33 Authentic texts

The Arabic, Chinese, English, French, Russian and Spanish texts of this Convention are equally authentic. IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Convention, which was opened for signature at the Headquarters of the United Nations in New York on 17 January 2005.

Annex to the Convention

Interpretations regarding certain provisions Conventions

This annex sets out the interpretations concerning the relevant provisions.

With regard to article 10

The term "immunity" in article 10 is understood in the context of the draft articles as a whole. Paragraph 3 of article 10 does not prejudge the issue of "penetration behind the corporate curtain", issues related to a situation in which a public entity deliberately misrepresented its financial situation or subsequently understated its assets in order to avoid claims or other related issues.

With regard to article 11

The reference in paragraph 2 (d) of article 11 to the "security interests" of the employing State is primarily intended to address issues of national security and the security of diplomatic missions and consular institutions. According to article 41 of the Vienna Convention on Diplomatic Relations of 1961 and article 55 of the Vienna Convention on Consular Relations of 1963, all persons mentioned in these articles are required to respect the laws and regulations, including compliance with labor laws, of the host State. At the same time, according to article 38 of the Vienna Convention on Diplomatic Relations of 1961 and article 71 of the Vienna Convention on Consular Relations of 1963, the receiving State must exercise its jurisdiction in such a way that it does not improperly interfere in the exercise of the functions of a mission or consular institution.

With regard to articles 13 and 14

The expression "establishment" is used not only to certify or confirm the existence of protected rights, but also to determine or evaluate the substance, including the content, scope and limits, of such rights.

With regard to article 17

The term "commercial transaction" applies to the field of investment.

With regard to article 19

The term "education" in subparagraph (c) means the State as an independent legal entity, an integral part of a federal State, a subdivision of the State, an institution or institution of the State, or another entity that enjoys independent legal personality. The words "property that has a connection with education" in subparagraph (c) should be interpreted in a broader sense than ownership or possession. Article 19 does not prejudge the issue of "penetration behind the corporate curtain" of issues related to a situation in which a public entity deliberately misrepresented its financial situation or subsequently understated its assets in order to avoid satisfying a claim or other related issues.

RCPI note: The text of the Convention in Arabic, Chinese, English, French, and Spanish is attached below.

President

Republic of Kazakhstan

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