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

Аннотация

This article provides a comprehensive analysis of the concept of “state immunity” as reflectedin 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 theconclusion that, even during the juridical consolidation of the theory of absolute immunity inRussia, 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 itslegal successor subsequently also followed) gradually began to conflict with the RussianFederation’s foreign economic activity and contract practices, and instances of Russia’srenunciation of absolute immunity increased in frequency. This tendency clearly shows that inthe 21st century the state cannot have absolute immunity because that version of sovereigntyconflicts with the global practice of state participation in private international relations. Inother words, the Russian Federation with the adoption of its Federal Law on Immunities hasmoved away from a theory of absolute immunity to acknowledge and employ a theory of thefunctional immunity of the state. At the same time, the Law on Immunities of 2016 alreadyrequires more elaboration and corrections even though it was only recently passed andimplemented. The methodology of study is based on the application of formal, logicaland comparative research methods together with general systematic methods of analysisand synthesis, deduction and induction. Questions touched upon in this article are widelydiscussed in establishing doctrines of private international law in both foreign and in Russianstudies. Issues connected with state immunity are raised by the authors and suggestions fortheir resolution are formulated based on the legal experience of contemporary Russia.