Theory of Absolute and Functional State Immunity in the Legislation and Judicial Practice of the Russian Federation

Abstract

This article provides a comprehensive analysis of the concept of “state immunity” as reflected in the legislation and judicial practice of the Russian Federation. A study in decisions of Russian courts prior to the adoption of the Federal Law on Immunities of 2016 leads to the conclusion that, even during the juridical consolidation of the theory of absolute immunity in Russia, on a number of questions Russia in fact adhered to a theory of functional immunity. The concept of absolute immunity which the USSR followed (and which Russia as its legal successor subsequently also followed) gradually began to conflict with the Russian Federation's foreign economic activity and contract practices, and instances of Russia's renunciation of absolute immunity increased in frequency. This tendency clearly shows that in the 21st century the state cannot have absolute immunity because that version of sovereignty conflicts with the global practice of state participation in private international relations. In other words, the Russian Federation with the adoption of its Federal Law on Immunities has moved away from a theory of absolute immunity to acknowledge and employ a theory of the functional immunity of the state. At the same time, the Law on Immunities of 2016 already requires more elaboration and corrections even though it was only recently passed and implemented. The methodology of study is based on the application of formal, logical and comparative research methods together with general systematic methods of analysis and synthesis, deduction and induction. Questions touched upon in this article are widely discussed in establishing doctrines of private international law in both foreign and in Russian studies. Issues connected with state immunity are raised by the authors and suggestions for their resolution are formulated based on the legal experience of contemporary Russia.