On September 1st, during the fifth session of the 14th National People's Congress Standing Committee, the "Foreign State Immunity Law of the People's Republic of China" (referred to as the "Immunity Law" hereafter) was voted and approved. It is scheduled to come into effect on January 1, 2024.
In terms of its structure, the Immunity Law consists of 23 articles, with the main provisions including:
Establishment of principles and exceptions for foreign state immunity. Firstly, it fundamentally affirms that foreign states generally enjoy jurisdictional immunity in Chinese courts （Article 3）. It also specifies that Chinese courts may exercise jurisdiction in cases arising from six major categories of non-sovereign acts by foreign states, such as lawsuits related to commercial activities, personal injury, intellectual property, and property damage caused by non-sovereign actions.
Confirmed that foreign state property is generally immune from enforcement measures in Chinese courts. However, Chinese courts may still impose enforcement measures under certain conditions for foreign state property related to commercial activities. It is advisable to ensure compliance with the legal requirements when considering enforcement measures and seek amicable dispute resolutions whenever possible.（Article 13, 14）
Scope and exceptions: The Immunity Law applies to foreign states, their institutions and constituent parts, as well as individuals and entities representing foreign states in exercising sovereign powers. This implies that the law covers a broad range of entities and individuals related to foreign states.
Procedurally, it confirms the role of the Ministry of Foreign Affairs in handling cases related to foreign state immunity. This mainly involves issuing evidential documents to the courts regarding factual issues related to state actions and providing opinions on matters concerning major national interests related to diplomatic affairs （Article 19）.
Reciprocity principle: If foreign states provide China with less favorable immunity treatment for its states and property than what is stipulated in this law, China will reciprocate accordingly (Article 21).
Clear delineation of special litigation procedures applicable to cases involving foreign state immunity (Article 16-18).
The introduction of the "Immunity Law" marks a milestone in the field of international law in China. This law is the first comprehensive legal framework in China's history that regulates the system of foreign state immunity. It provides a legal basis for Chinese courts to exercise jurisdiction and adjudicate civil cases with foreign states as defendants.
State immunity refers to the principle that domestic courts do not hear cases in which foreign states are defendants, nor do they take enforcement actions against foreign states. Early on, European countries adopted the principle of restrictive immunity through judicial precedents and the 1972 "European Convention on State Immunity." The United States enacted the "Foreign Sovereignty Immunities Act" in 1976, which was one of the earliest single acts to establish the principle of restrictive immunity. Countries like the United Kingdom, Singapore, Pakistan, South Africa, Malawi, Canada, Australia, Argentina, Israel, Japan, Spain, Russia, and others have also enacted single acts regarding foreign state immunity.
While most countries, including France, Italy, Turkey, Brazil, and others, have not enacted specific legislation on state immunity, they have adopted the principle of restrictive immunity through means such as incorporating specific provisions in civil procedural laws and relying on judicial precedents. Although there are some differences in the specific rules on state immunity in the single acts enacted by the United States, the United Kingdom, Japan, Russia, and others, as well as in the "European Convention on State Immunity" and the "United Nations Convention on Jurisdictional Immunities of States and Their Property," the core principles include:
Foreign states generally enjoy immunity.
Foreign states do not have jurisdictional immunity in cases related to non-sovereign acts, primarily commercial activities.
Immunity from judicial enforcement measures for foreign state property is waived only in cases where the foreign state expressly relinquishes immunity.
Rules regarding litigation procedures.
State immunity does not affect other privileges and immunities enjoyed by foreign states under international law and domestic law.
State immunity primarily consists of absolute immunity and restrictive immunity. Absolute immunity typically means that the courts in the host country do not have jurisdiction over lawsuits where foreign states are defendants, regardless of the nature of the activities carried out by the foreign state. Restrictive immunity, also known as limited immunity, involves distinguishing foreign state actions into "sovereign acts" and "non-sovereign acts" based on their nature, and correspondingly categorizing foreign state property into "sovereign assets" and "commercial assets." This distinction is used to clarify that sovereign acts and sovereign property of foreign states are subject to jurisdictional immunity, while non-sovereign acts and national commercial property are no longer granted jurisdictional immunity.
For a long time, China has applied the principle of absolute state immunity, which means that Chinese courts do not handle cases with foreign states as defendants or cases related to the property of foreign states. This system had significant relevance for China during the early years of the founding of People's Republic of China, especially as China was in a state of reconstruction and actively seeking integration into the international community. However, with the changing global landscape, China's continued use of the absolute immunity system presents an urgent challenge.
On one hand, certain foreign governments, in an attempt to hinder China's development and limit its rise, have frequently imposed unwarranted restrictions or sanctions on Chinese individuals, businesses, organizations, and the country itself, often without a proper legal basis. They have also resorted to domestic laws and litigation procedures to sue the Chinese government. On the other hand, Chinese entities have been unable to take reciprocal measures domestically by filing lawsuits against foreign governments in Chinese courts in response to such actions. This situation is clearly disadvantageous to China.
Some viewpoints suggest that after the implementation of the "Immunity Law," Chinese entities can now sue foreign countries in Chinese courts at any time for matters such as foreign infringements on Chinese sovereignty or causing harm to China. Some non-governmental entities are even prepared to file corresponding lawsuits on the first day. Regarding this, we maintain an optimistic but cautious attitude.
Firstly, based on the principles established in Articles 16 to 19 of the "Immunity Law," trials and enforcement procedures against foreign countries as defendants will mainly follow China's Civil Procedure Law and other relevant laws and regulations. Many details need further clarification, such as jurisdiction levels, territorial jurisdiction, qualifications and numbers of representatives, language of proceedings, rules of evidence, counterclaim procedures, and even finer details like the mode of material submission. Given the current situation of fewer cases and limited resources in Chinese courts, it is challenging to directly handle lawsuits brought by civil organizations against foreign countries. Therefore, it is recommended that the Supreme People's Court issue relevant judicial interpretations to clarify these detailed aspects, including the process of refusal to accept cases. Additionally, considering that cases involve national sovereignty and image, a detailed process for the court to refuse acceptance should be stipulated.
Secondly, as mentioned above, according to Articles 13 and 14 of the "Immunity Law," foreign state property is generally immune from compulsory enforcement by Chinese courts. Therefore, even if a favorable judgment is obtained, for most Chinese entities, there may not be substantive recourse at this time.
However, the "Immunity Law" no longer applies the principle of absolute immunity to foreign countries, which provides Chinese courts with a clear legal basis to exercise jurisdiction over cases arising from six major categories of non-sovereign acts by foreign states. This opens up the possibility for Chinese entities to seek redress in Chinese courts for issues such as unjust sanctions by foreign courts, improper seizure of Chinese assets, environmental contamination of Chinese seas or forests, and historical legacy issues that emotionally affect all Chinese people, such as comfort women in WWII.
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