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Summary

In 2015, a law regulating the application of sovereign immunity was passed in the Russian Federation.  The law is based on the reciprocity principle under which Russian courts must consider the degree of immunity the Russian Federation enjoys in a foreign state when deciding whether to lift the jurisdictional immunity of that state.  No legal act currently in force defines how the balanced response required by law for this determination is to be calculated.  The Foreign Ministry is assigned with the duty to inform courts on how Russian sovereign immunity is treated abroad.  Drafters of the law suggested that it aims to counteract claims against Russia and Russian property brought in foreign courts.  The only court ruling against a foreign government disregarding the principle of sovereign immunity was issued by a court in Moscow in 2014 against the United States.

I.  Current Legislation

On January 1, 2016, the Federal Law on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation entered into force.  This Law was introduced in the Russian legislature in late-Summer 2015, and after a brief period of debate was passed by the Federal Assembly (legislature) and signed by President Putin on October 28, 2015.[1]

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II.  Major Provisions of the Law on Jurisdictional Immunity of a Foreign State

The Law states that it regulates the application of jurisdictional immunity by foreign states over foreign-state property in the Russian Federation and provides for the priority of international treaty provisions over this Law if such a treaty has been concluded.[2]  Foreign states, their components, bodies, institutions, organizations, and representatives are subject to the Law’s jurisdiction.  The Law applies to the components of a foreign state if these components are eligible to act in order to perform sovereign powers of the state, and to institutions and organizations of a foreign state regardless of whether they are legal entities if these institutions and organizations are eligible to act and are actually acting in order to perform sovereign powers of a foreign state.[3]  The Law defines “property of a foreign state” as property on the territory of the Russian Federation that belongs to a foreign state and is used by the same foreign state.[4]  Courts of general jurisdiction, including arbitration courts, have jurisdiction over jurisdictional immunity cases,[5] and must apply Russian procedural legislation.[6] 

Implementation of the Law must not damage the privileges and immunities of foreign states’ diplomatic and consular offices, special missions, representations at international organizations, heads of state and governments, foreign ministers, aircraft, space equipment, naval ships, and other state vessels used for noncommercial purposes.[7]

Reciprocity is declared as a main principle under which Russian courts will consider the limits to jurisdictional immunity of a foreign state in relation to the degree of immunity the Russian Federation enjoys in that foreign state.  The immunity of a foreign state can be limited in Russia if the foreign state limits Russian jurisdictional immunity.  The Russian Ministry of Foreign Affairs is required to provide recommendations concerning the extent of jurisdictional immunity that the Russian Federation has in a foreign state.[8] 

Articles 6 and 7 of the Law discuss the agreement of a foreign state to accept Russian jurisdiction and waivers of jurisdictional immunity.  The agreement of a foreign state to apply Russian law in a particular trial and nonparticipation of a foreign state in a trial conducted in a Russian court must not be considered as the foreign state’s waiver of jurisdictional immunity.  A foreign state’s decision on waiver is final.  A foreign state waives its jurisdictional immunity if it submits a claim to a Russian court. 

Articles 8 through 14 define situations when foreign states cannot insist on jurisdictional immunity in Russia.  These include disputes concerning the commercial activity of a foreign state or civil law transactions,[9] labor disputes,[10] disputes concerning participation in organizations,[11] disputes concerning a foreign state’s rights and obligations concerning real estate and other property located in Russia,[12] tort cases,[13] intellectual property and copyright disputes,[14] and disputes concerning commercial vessels.[15]  Immunity does not apply to measures taken to secure the claim[16] or to execute a court ruling.[17]  The Law emphasizes that any property of a foreign state located in Russia can be used to secure the execution of a court ruling if this property is not used and/or not supposed to be used for the purposes of performing sovereign power functions.[18]

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III.  Legislative Intent

The Law was drafted and introduced by the Russian Ministry of Justice, which stated in the Explanatory Note to the Bill that the measure is aimed at abolishing the previously used doctrine of absolute sovereign immunity, which “contradicts the current practice of Russian foreign economic activities.”[19]  According to the drafters of the Law, “the number of claims against Russia in foreign courts is growing constantly, and no one is asking for Russia’s agreement to be sued.”[20]  They proposed to establish a “balance” based on principles of reciprocity, saying that “if Russian property has limited or no immunity in a particular country, Russia shall be empowered to establish similar restrictions for that country’s property located in the Russian Federation.”[21]  At the same time, neither the Law nor accompanying documents define how a balanced response will be calculated.  As one of the legislators said when the Law was discussed in the Federation Council (the upper legislative chamber), “this Law shall be of a preventive nature to protect Russia from the unfriendly actions of other countries.”[22] 

As stated in the Explanatory Note, the adoption of this Law was required because of “wide acceptance of the limited sovereignty concept in the legislation of foreign states, under which a foreign state, its bodies, and organizations do not enjoy immunity in regard to claims based on commercial activities of those subjects,” and that adoption must be in accordance with the 2004 UN Convention on Jurisdictional Immunities of States and Their Property.[23]  The Explanatory Note also says that this Russian Law follows similar laws passed in the US, Canada, the United Kingdom, Australia, South Africa, and Singapore, and reflects decisions by courts in France, Denmark, Norway, Greece, Italy, and Germany.[24]

Commenting on the passage of the Law, some Russian lawyers have disputed the need for this legislation, stating that the property of foreign states can be seized under current Russian law if there is a proper court order.  They have also asserted that the implementation of this Law will depend on later interpretations because the definition of “reciprocity” is too vague.  At the same time, some members of the State Duma’s Committee on Property Legislation believe that the Law does not go far enough to provide “real protection of Russian property interests abroad” and have proposed a package of related laws that will be discussed later in 2016.[25] 

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IV.  Commentary

Russian commentators have suggested that the Federal Law on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation was adopted in response to the seizure of Russian property in France and Belgium in 2015, following the verdicts of the Permanent Court of Arbitration and the European Court of Human Rights under which Russia was required to pay US$39.9 billion to former stockholders of the Yukos Oil Company.  Russia did not recognize these rulings.  Reportedly, in July 2015, because of the Russian government’s refusal to provide payment to the plaintiffs, Belgian officials informed forty-seven Russian and international companies that the property of these companies located in Belgium would be seized in order to secure the execution of the courts’ rulings against Russia and that Belgium was starting to inventory Russian property subject to seizure.  At the same time, the accounts of a subsidiary of Russian state bank VTB in France were also seized.  Russian officials, including members of the Cabinet of Ministers and the Press Secretary of the Russian Federation President, promised to take measures aimed at protecting Russian interests and to counteract foreign court judgments.[26]

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Prepared by Peter Roudik
Director of Legal Research
June 2016



[1] Federal Law No. 297-FZ on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102381335&ИНТЕЛСЕАРЦХ= (official publication, in Russian), archived at http://perma.cc/PY6H-DFPT.

[2] Id. art. 1.

[3] Id. art. 2.

[4] Id. art. 2(2).

[5] Id. art. 2(7).

[6] Id. art. 17.

[7] Id. art. 3.

[8] Id. art. 5.

[9] Id. art. 8.

[10] Id. art. 9.

[11] Id. art. 10

[12] Id. art. 11.

[13] Id. art. 12.

[14] Id. art. 13.

[15] Id. art. 14.

[16] Id. art. 15.

[17] Id. art. 16.

[18] Id. art. 17(3).

[19] Explanatory Note to Bill on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation, http://asozd2.duma. gov.ru/main.nsf/%28ViewDoc%29?OpenAgent&work/dz.nsf/ByID &886399D4D250B59843257E9A003E030D (in Russian; all translations by author), archived at http://perma.cc/4DGL-7VY7.

[20] Id.

[21] Id.

[22] Russian Government Suggests How to Respond to Seizures of Russian Property Abroad, Newsru.com (Aug. 5, 2015), http://www.newsru.com/russia/ 05aug2015/government_print.html (in Russian), archived at http://perma.cc/TKP2-H7VS.

[23] Explanatory Note, supra note 19 (citing UN Convention on Jurisdictional Immunities of States and Their Property, Dec. 2, 2004 (not yet in force), U.N. Doc. A/59/508, http://legal.un.org/ilc/texts/instruments/english/ conventions/4_1_2004.pdf, archived at https://perma.cc/F6U8-XPM7).

[24] Id.

[25] Ministry of Justice Proposed Seizing Foreign Property in Russia, Newsru.com (July 22, 2015), http://txt.newsru.com/ russia/22jul2015/assets_print.html (in Russian), archived at http://perma.cc/6ZET-SYCT.

[26] Kremlin Promised to Dispute Property Seizures in France and Belgium, Newsru.com (June 18, 2015), http://www.newsru.com/russia/18jun2015/ belousov_print.html (in Russian), archived at http://perma.cc/QS2J-PNCC.

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Last Updated: 10/26/2016