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Anne-Catherine Hahn
Recent years have seen a sharp increase in the number and importance of state-controlled entities engaging in cross-border commercial activities.While such entities are often perceived as ordinary commercial actors, they may nevertheless enjoy immunity defenses, in particular at the enforcement stage. Despite the broad international acceptance of the restrictive doctrine of immunity, many courts exercise restraint when asked to enforce claims against foreign state-controlled assets, even if the underlying claims are of commercial nature. To manage these risks, counterparties dealing with state-controlled entities should from early on seek clarity on the legal structure of the state party, and on the nature and location of its assets. Waivers from immunity should be adjusted to the requirements of the jurisdictions where assets are located. Where this is not possible, agreements may have to be structured in such a way as to minimize the need for potential enforcement proceedings.
