E-raamat: Sovereign Wealth Funds and State Immunity

Acknowledgment


Abbreviations


International and Domestic Documents


Table of Cases


General Introduction

1Problem Statement


2Research Question


3Selected Jurisdictions and Structure




Part 1

swfs: History, Definitions and Core Elements

Introduction to Part 1


1The Development of swfs as New State Investment Vehicles

1The Emergence of swfs

1.1Historical Antecedents: The India Companies and the Industrial
Revolution (before 1953)


1.2The Genesis of Commodity and Non-commodity swfs (between 1953 and
the Mid-1990s)


1.3The Expansion of swfs: The Asian Financial Crisis and the Rise of
Crude Oil Price (between the Mid-1990s and 2005)


1.4swfs Achieving International Prominence (after 2005)




2The Quest for a Definition of swfs: the Main Scholarly Definitions

2.1The First Definitions


2.2swfs as Government-Managed Entities Seeking Higher Rates of
Returns


2.3Definitions Focusing on swfs Liability


2.4Definitions Based on How swfs Are Managed


2.5The Relevance of Funds Ownership and Purposes




3Institutional Attempts to Define and Regulate swfs

3.1imf Definitions


3.2The Santiago Principles


3.3Other Definitions Provided by International Organizations




4Differences between swfs and Other Cognate Entities

4.1swfs and State-Owned Enterprises


4.2swfs and Public Pension Funds


4.3swfs and International Reserves




2swfs Core Elements

1Legal Structure


2Governance


3Source of Assets


4Purpose

4.1Diplomatic and Political Tool


4.2National Development Tool


4.3Stabilisation and Diversification Tool


4.4Intergenerational Savings Tool




5Types of Investments


Provisional Conclusions




Part 2

swfs and Adjudicative Immunity

Introduction to Part 2


3The uncsi as an Attempt to Codify International Law on State
Immunity

1Relevance of the Convention for Development of a Customary Rule


2Framing of swfs into the Notion of State


3The Commercial Exception to Adjudicative Immunity


4swfs with an Independent Legal Personality and Immunity of the Parent
State




4The Common Law Approach to Adjudicative Immunity: Two Archetypes of
Statutory Norms

1United States

1.1Pool-of-Assets swfs


1.2swfs Established with Independent Legal Personality


1.3The Commercial Exception Under the fsia




2United Kingdom

2.1Qualification of a Pool-of-Assets swf as a Department of
Government


2.2The Commercial Exception Under the sia


2.3swfs Established as Separate Entities




5The Civil Law Approach to Adjudicative Immunity

1France


2Germany


3Italy


4China

4.1Once Upon a Time: prc as the Last Bastion of Absolute Immunity


4.2State Immunity and swfs before 2023


4.3The Current Scenario




Provisional Conclusions




Part 3

swfs and Immunity from Execution

Introduction to Part 3


6The 2004 UN Convention

1Beneficiaries of Immunity from Execution Under the uncsi


2Differences between Pre- and Post-judgment Measures. The Commercial
Exception


3Piercing the Corporate Veil according to the uncsi




7The US fsia and the UK sia

1United States

1.1Post-judgment Attachment: Pool-of-Assets swfs


1.2Post-judgment Attachment: swfs Established as Separate Entities


1.3Pre-judgment Attachment




2United Kingdom

2.1Post-judgment Execution. The Commercial Exception


2.2Pre-judgment Attachment


2.3swfs with Separate Legal Personality




8European Civil Law Jurisdictions: France, Germany and Italy

1France

1.1From Eurodif to the Sapin 2 Law


1.2French Courts Decisions on swfs Property




2Germany


3Italy

3.1Pre-judgment Measures




4China

4.1Pre-2023: Chinas Traditional Approach towards Immunity from
Execution


4.2Post-2023: Chinas Adherence to the Restrictive Doctrine of State
Immunity




Provisional Conclusions




Part 4

Immunity of swfs Managed by Central Banks

Introduction to Part 4


9The Umbrella Protection of Central Banks to swfs

1swfs in Systems Providing for Near-Absolute Protection to Central Bank
Assets

1.1The uncsi


1.2United Kingdom


1.3China




2swfs and the Purpose Test in Jurisdictions Granting a Milder Protection
to Central Banks

2.1United States


2.2France


2.3Germany




3A Recent Trend to Be Monitored on Denying Immunity to swfs Managed by
Central Banks: Stati v. Kazakhstan


Provisional Conclusions




Concluding Remarks: General Trends on swfs and State Immunity




Bibliography


Index

Marco Argentini, Ph.D. (2023), University of Bologna, is Postdoctoral Fellow and Adjunct Professor in International Law. He is admitted to the Italian Bar.