A/RES/59/38
Article 7
Express consent to exercise of jurisdiction
1.
A State cannot invoke immunity from jurisdiction in a proceeding before a
court of another State with regard to a matter or case if it has expressly consented to
the exercise of jurisdiction by the court with regard to the matter or case:
(a)
by international agreement;
(b)
in a written contract; or
(c) by a declaration before the court or by a written communication in a
specific proceeding.
2.
Agreement by a State for the application of the law of another State shall not
be interpreted as consent to the exercise of jurisdiction by the courts of that other
State.
Article 8
Effect of participation in a proceeding before a court
1.
A State cannot invoke immunity from jurisdiction in a proceeding before a
court of another State if it has:
(a)
itself instituted the proceeding; or
(b) intervened in the proceeding or taken any other step relating to the
merits. However, if the State satisfies the court that it could not have acquired
knowledge of facts on which a claim to immunity can be based until after it took
such a step, it can claim immunity based on those facts, provided it does so at the
earliest possible moment.
2.
A State shall not be considered to have consented to the exercise of
jurisdiction by a court of another State if it intervenes in a proceeding or takes any
other step for the sole purpose of:
(a)
invoking immunity; or
(b)
asserting a right or interest in property at issue in the proceeding.
3.
The appearance of a representative of a State before a court of another State as
a witness shall not be interpreted as consent by the former State to the exercise of
jurisdiction by the court.
4.
Failure on the part of a State to enter an appearance in a proceeding before a
court of another State shall not be interpreted as consent by the former State to the
exercise of jurisdiction by the court.
Article 9
Counterclaims
1.
A State instituting a proceeding before a court of another State cannot invoke
immunity from the jurisdiction of the court in respect of any counterclaim arising
out of the same legal relationship or facts as the principal claim.
2.
A State intervening to present a claim in a proceeding before a court of another
State cannot invoke immunity from the jurisdiction of the court in respect of any
counterclaim arising out of the same legal relationship or facts as the claim
presented by the State.
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