Abstrakt
This article comments on the French Supreme Court's decision, Commisimpex v. République du Congo, dated May 13, 2015, related to the scope of waivers of state immunity from execution.
The court decided that an express waiver of immunity was enough to execute on bank accounts of foreign states' diplomatic missions and abandoned its former requirement that a waiver must be both express and specific to execute on such assets. This decision thus marked a surprise reversal by the court of its earlier 2011 and 2013 decisions, which reinforced state immunity from execution, traditionally referred to as "the last bastion of State immunity." In wake of the Commisimpex decision, this last bastion had fallen in presence of an express waiver of state immunity from execution in France.
The author analyzes the reasons for the reversal and explores the consequences of the Commisimpex decision for both states and their creditors, as well as the decision's potential impact on the famous Creighton jurisprudence, by which the French Supreme Court deemed a state's agreement to arbitrate to constitute a waiver of its immunity from execution. The Commisimpex decision was a blow to state immunity from execution in France.
But will "that which does not kill it make it stronger"? Depending on states' behavior and the fate of the Creighton jurisprudence, state immunity from execution might become stronger than ever before.