Immunity From Jurisdiction in Civil Proceedings in Which a Foreign State is Not Named as a Party
Courts around the world, the Dutch courts included, have increasingly dealt with civil proceedings involving foreign States. It goes without saying that the doctrine of State immunity plays a critical role in such proceedings. Generally speaking, this doctrine compels a court to decline jurisdiction in a case against a foreign State unless an exception applies, for example in case of a voluntary appearance (waiver) or if the claim relates to acts performed by that foreign State as if it were a private individual (acta iure gestionis). It also goes without saying that for State immunity from jurisdiction to apply, the foreign State must be a party to the proceedings. This is obviously the case where the foreign State is formally named as such because it is one of the defendants. But what if the foreign State is not formally one of the defendants?
This question is particularly important because we are currently seeing an increase in proceedings between private parties (or between private parties and the (Government of the) forum State), in which (the lawfulness of) the exercise of public authority by a foreign State is a critical aspect of the proceedings but in which that foreign State is not named as one of the formal defendants. Examples include civil proceedings against private companies or the forum State for their (alleged) complicity in or contribution to human right violations by a foreign State.
In some of these cases immunity from jurisdiction was granted, in other cases it was rejected and in some cases immunity from jurisdiction was not even relied on (nor did the court assess ex officio whether immunity from jurisdiction applied). Why? What is the dividing line? Is there a “tipping point” and, if so, how and where is that point to be found?
These are the questions at the heart of a recent paper by Cathalijne van der Plas and Thom Dieben entitled “Immunity From Jurisdiction in Civil Proceedings in Which a Foreign State is Not Named as a Party” drawn-up for discussion at the 2025 annual general meeting of the Royal Netherlands Society of International Law (KNVIR).
Among other things, the paper discusses past and current case law as well as other State practice on the topic. It also discusses art. 6(2)(b) of the United Nations Convention on Jurisdictional Immunities of States and Their Property (“UNCSI”) which provides that a proceeding should be considered to have been instituted against another State if that other State “is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” Courts and scholars throughout the world have struggled with the meaning of this provision. The paper discusses these scholarly writings and judgements but also tries to reconstruct how this article came into being and what it was intended to mean by deep diving into the travaux préparatoires.
For more information on the 2025 annual general meeting of the Royal Netherlands Society of International Law (KNVIR) click here. The research paper by Cathalijne and Thom can be downloaded here.