International Journal of Law And Criminology
8
https://theusajournals.com/index.php/ijlc
VOLUME
Vol.05 Issue03 2025
PAGE NO.
8-12
10.37547/ijlc/Volume05Issue03-02
International regulation and practice of responsibility of
the state as a participant in private international law
Kodirjonov Azizbek Murodjonovich
Master's student in International Business Law at the University of World Economy and Diplomacy, Uzbekistan
Received:
03 January 2025;
Accepted:
05 February 2025;
Published:
07 March 2025
Abstract:
The notion of state responsibility in private international law embodies a complex dimension that
interweaves traditional public international law principles with the realities of cross-border transactions and
disputes involving non-state actors. Historically, the doctrine of state responsibility arose as a mechanism by which
one state could hold another accountable for breaches of international obligations, particularly in contexts where
diplomatic protection served as the primary avenue for individual claimants seeking remedies for wrongful acts.
Keywords:
Foreign direct investment, cross-border commercial transactions, human rights norms.
Introduction:
The notion of state responsibility in
private international law embodies a complex
dimension that interweaves traditional public
international law principles with the realities of cross-
border transactions and disputes involving non-state
actors. Historically, the doctrine of state responsibility
arose as a mechanism by which one state could hold
another accountable for breaches of international
obligations, particularly in contexts where diplomatic
protection served as the primary avenue for individual
claimants seeking remedies for wrongful acts. Over
time, however, global developments
—
including the
rise of foreign direct investment, the diversification of
cross-border commercial transactions, and the
deepening recognition of human rights norms
—
catalyzed a re-examination of the role of states as
direct participants in what had previously been viewed
as private or commercial legal realms. As a result, states
came to be seen not merely as sovereign enforcers of
domestic law but also as actors that themselves could
be held accountable within foreign judicial and arbitral
forums. This transition has been neither seamless nor
uniform, as states often invoke sovereign immunity and
other jurisdictional defenses to limit the extent to
which they can be sued in foreign courts. Yet, in the
contemporary
order,
various
international
conventions, national statutes, and arbitral rules have
carved out exceptions and frameworks that allow
private parties to bring claims against states. Hence,
the evolving contours of state responsibility in private
international law reflect both the enduring principle of
sovereignty and the practical demands of cross-border
justice.
The historical development of international regulation
concerning the state’s responsibility in private
international law can be traced to the shifting notions
of sovereign immunity, which at one time stood almost
as an absolute bar to any legal proceedings against a
state in foreign courts. With states increasingly
participating
in
commercial
transactions,
the
traditional doctrine of absolute immunity yielded to a
more restrictive approach, sometimes codified in
domestic statutes and international agreements. The
restrictive doctrine draws a line between a state’s
public or sovereign acts (acta jure imperii) and its
commercial or private acts (acta jure gestionis).
Through this distinction, courts in many jurisdictions
began asserting the power to exercise jurisdiction over
foreign states when the legal dispute emerged from a
transaction that appeared essentially commercial
rather than governmental in character . The impetus
behind this doctrinal shift was the pursuit of fairness in
commercial dealings and the recognition that states
acting as market participants should not be given
undue advantage merely by virtue of their sovereign
status. However, debates persist regarding how
precisely to classify borderline activities, such as
government procurement, public infrastructure
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International Journal of Law And Criminology (ISSN: 2771-2214)
projects, or state-owned enterprises engaged in global
trade, which often blur the lines between the purely
public and the distinctly commercial realms. As a result,
while the restrictive theory of immunity has become a
cornerstone of many legal systems, its implementation
continues to spawn litigation and theoretical
controversy over how to demarcate state functions
versus private conduct.
A major catalyst in expanding the scope of state
responsibility in private international law has been the
proliferation of bilateral and multilateral investment
treaties, which establish explicit legal protections for
foreign investors vis-à-vis host states. These treaties
frequently contain provisions allowing investors to
initiate arbitration proceedings directly against the
host state if the latter is alleged to have breached its
treaty obligations, such as protection against unlawful
expropriation or a failure to provide fair and equitable
treatment. The best-known framework for such
disputes is the International Centre for Settlement of
Investment Disputes (ICSID), a specialized arbitration
institution operating under the auspices of the World
Bank. By granting direct investor
–
state arbitration,
ICSID and similar mechanisms circumvent the once-
central principle that only states could invoke the
liability of other states in international settings. This
development underscores a broader conceptual shift:
no longer is it solely the home state that espouses an
investor’s claim, as private entities now possess the
standing to pursue legal action in their own capacity.
Consequently, this interplay of investment law and
private international law highlights how the protective
umbrella once reserved exclusively for inter-state
disputes has been extended to individual claimants,
thus anchoring the idea that states, when acting in a
manner contrary to agreed-upon standards, can be
held directly accountable by private parties.
Nonetheless, critics have voiced concerns that
investor
–
state arbitration may unduly constrain a
country’s regulatory autonomy by subjecting sovereign
policy choices
—
particularly those related to health,
environment, or public welfare
—
to intense arbitral
scrutiny.
Another dimension where the international regulation
of state responsibility intersects with private
international law is found in cases dealing with grave
violations of human rights or humanitarian norms.
While historically, human rights claims were addressed
predominantly through inter-state procedures, or in
certain instances through regional human rights courts,
there has been an increasing attempt to bring such
claims before domestic courts, especially under
“universal jurisdiction” doctrines or through
statutes
such as the Alien Tort Statute in the United States.
These legal pathways, though not always successful,
demonstrate a growing willingness among some
jurisdictions to entertain lawsuits against foreign
officials
—
or, in rare cases, foreign states themselves
—
when alleged human rights abuses are deemed
egregious and contrary to fundamental international
standards. Questions of sovereign immunity and act-of-
state doctrines often loom large in these proceedings,
as courts struggle to balance the imperative of
upholding peremptory norms with the risk of
diplomatic fallout and the need to respect foreign
sovereignty. Moreover, in certain legal systems,
attempts are made to draw parallels between the
commercial exception to immunity and particularly
grave transgressions of international law, positing that
such acts should not be accorded protection under the
principle of sovereignty. Nevertheless, the extent to
which this reasoning is accepted varies significantly
across jurisdictions, making it uncertain whether
human rights claims against states will be recognized in
domestic courts on a consistent basis.
Central to the evolution of state responsibility in
private international law is the question of attribution,
which entails determining when conduct can be legally
imputed to the state rather than being regarded as the
autonomous actions of private entities or officials
acting ultra vires. The International Law Commission’s
Articles on Responsibility of States for Internationally
Wrongful Acts prescribe a framework under which
conduct carried out by organs of the state, or by
persons or entities empowered to exercise elements of
governmental authority, is considered an act of the
state, thereby rendering the state internationally
responsible if such conduct violates an international
obligation. However, real-world scenarios frequently
pose intricate factual and legal dilemmas, such as when
state-owned companies or paramilitary forces operate
in tandem with official governmental organs without a
clear demarcation of authority. Domestic courts
handling disputes that involve alleged wrongdoing by a
foreign state-owned entity must examine multiple
factors: the degree of control exerted by the
government, the corporate structure of the entity, and
the nature of the activity undertaken. Such nuanced
inquiries highlight the interplay between public
international law standards of attribution and the
domestic legal norms governing corporate or tort
liability, resulting in cases where courts must reconcile
potentially divergent conceptual frameworks. In so
doing, national judges often seek guidance from
international jurisprudence, academic writings, or
comparative case law to navigate the borderline realms
of private and public conduct, mirroring the broader
trend toward legal hybridity in transnational disputes.
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A concomitant aspect that arises once attribution is
established is the need to determine the nature of the
obligation allegedly breached and whether it is
enforceable at the domestic level. While public
international law conceptualizes obligations primarily
in terms of treaties and custom, private international
law disputes might hinge on a wider array of sources,
including domestic statutes, contractual undertakings,
or bilateral investment treaties. Some jurisdictions take
the stance that only specific, clearly defined
international obligations, often codified in domestic
legislation, can be judicially enforced by private
claimants.
Others adopt a broader perspective, permitting courts
to recognize and apply treaty obligations or customary
norms if they are sufficiently precise and intended to
create rights for individuals. This divergence in
approach is further complicated by the possibility that
the breach involves a jus cogens norm, such as the
prohibition on torture or genocide, which some courts
deem to override immunity defenses due to its
peremptory status. On the other hand, not all
jurisdictions have embraced such an exception, leaving
the enforceability of peremptory norms uncertain in
lawsuits against states. Thus, the question of whether
and how international obligations filter into domestic
legal practice is not merely academic but pivotal for
determining whether private actors can actually hold
states to account for internationally wrongful acts.
Building upon these foundational concepts, scholars
and practitioners frequently highlight the centrality of
reparation
—
be it in the form of restitution,
compensation, or satisfaction
—
as a key remedy under
international law principles of responsibility. From the
vantage point of private international law, however,
the emphasis often shifts toward the question of
practical enforcement.
Even when a court or arbitral tribunal determines that
a foreign state has breached its duties and awards
damages, the
claimant’s success depends heavily on
whether the judgment or award can be executed
against the state’s assets. Many states continue to
adhere to comprehensive immunity from execution, a
principle that restricts or altogether prohibits the
attachment
of
assets
belonging
to
foreign
governments. This protective shield is typically justified
on grounds of comity and the need to preserve
diplomatic relations, especially if the assets in question
are used for sovereign, public purposes. In response,
certain claimants have sought to target state-owned
enterprises on the theory that such entities function as
alter egos of the sovereign. Nevertheless, courts have
been reluctant in some jurisdictions to conflate
commercial entities with the state itself, unless there is
a compelling showing of complete control or lack of
distinction in financial dealings. As a result,
the mismatch between a theoretical finding of
responsibility and the realistic ability to enforce a
judgment underscores an ongoing tension in the
international legal order, wherein states retain
formidable defenses that may hinder effective
remedies for harmed private parties.
The practice of states in litigation and arbitration
reveals a variety of strategic responses to claims of
responsibility within private international law forums.
At times, states rely on jurisdictional challenges,
arguing that the forum is not appropriate or that the
matter should be resolved under the auspices of an
international tribunal specifically designed to handle
investor
–
state or interstate disputes. This tactic can be
seen where treaties include exclusive dispute
resolution clauses, obliging parties to refer
controversies to arbitration rather than domestic
courts. Further, states might invoke the act-of-state
doctrine, particularly in jurisdictions where it is
recognized, contending that certain sovereign acts
taken within their own territory are not justiciable in a
foreign court. Conversely,
in scenarios where states genuinely wish to engage
with private claimants, either to settle disputes
amicably or to maintain a reputation for respecting the
rule of law, they may waive immunity or agree to
subject themselves to a particular forum in contractual
clauses. Such waivers reflect a pragmatic balancing of
state interests in attracting foreign business and
preserving flexibility in governmental decision-making.
The overall panorama is one of procedural complexity:
claimants must be mindful of the legal labyrinth that
includes immunity defenses, forum selection clauses,
the act-of-state doctrine, and the interplay between
domestic laws and international treaties. Each variable
can dramatically alter the outcome, illuminating why
international regulation of state responsibility
continues to be both conceptually rich and practically
challenging for litigants.
Moreover, the role of comity and public policy
exceptions in private international law adds another
layer of intricate deliberation, as courts weigh the
respect owed to foreign sovereignties against the
imperative of upholding fundamental principles of
justice. Comity, understood as a doctrine of mutual
deference among states, can lead a court to dismiss or
stay proceedings out of recognition for another
nation’s judiciary or legal processes. In contrast, a
public policy exception may drive a court to assert
jurisdiction despite immunity claims if the acts in
question offend deeply held norms or moral
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imperatives of the forum state. This tension is
especially pronounced when allegations involve
heinous conduct, such as crimes against humanity, war
crimes, or systematic violation of human rights. Some
jurisdictions have carved out discrete exceptions to
immunity in cases involving serious international
crimes, reasoning that extending immunity to such acts
would run counter to the fundamental values
protected by the international community. Yet, the
practical application of these exceptions differs widely
among legal systems, reflecting the absence of a
universal consensus. Although there is an ongoing
discussion about whether a peremptory norm (jus
cogens) should categorically override sovereign
immunity, no settled global rule has emerged, leaving
national courts with significant discretion in deciding
whether to allow or deny suits against foreign states for
grave violations.
Beyond domestic litigation, the practice of state
responsibility in private international law is
prominently displayed in the realm of international
arbitration. Investor
–
state arbitration, anchored in
bilateral
investment
treaties
or
multilateral
frameworks like the Energy Charter Treaty, permits
foreign investors to bypass local courts and directly
initiate claims against host states. In these contexts,
arbitrators draw upon principles of both public
international law
—
such as the fair and equitable
treatment standard
—
and private law doctrines,
particularly when interpreting investment contracts or
assessing damages. The outcomes of such arbitrations
can be significant, with multimillion or even
multibillion-dollar awards imposed on states found to
have violated treaty obligations. These awards are
typically enforceable in multiple jurisdictions under
international conventions such as the ICSID Convention
or the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. Nonetheless,
the system has ignited debates about transparency,
consistency, and legitimacy, as arbitral decisions can
effectively constrain a state’s ability to regulate in
domains like environmental protection or public
health. Critics argue that the heightened risk of liability
might deter governments from adopting robust
regulatory measures, while supporters maintain that
the arbitration regime merely ensures states adhere to
internationally recognized standards of fair treatment,
thereby promoting economic stability and investor
confidence. Such debates underscore how state
responsibility, once viewed primarily through the lens
of inter-state diplomacy, now resonates powerfully in
the private international law arena, shaping both legal
theory and economic policy.
An equally significant yet sometimes overlooked factor
in the international regulation of state responsibility is
the principle of good faith, which undergirds much of
international and transnational legal practice. Good
faith obligations guide the interpretation and
performance of treaties, ensuring that states neither
exploit legal loopholes nor frustrate the legitimate
expectations of their treaty partners or private
counterparties. In private international law disputes,
the invocation of good faith can influence how courts
or arbitral tribunals assess whether a government’s
actions were fair, transparent, and proportionate. For
instance,
an
abruptly
enacted
environmental
regulation, even if non-discriminatory on its face, might
be viewed as violating fair and equitable treatment if
introduced without proper notice or consultation,
thereby
undermining
the
legitimate
business
expectations of a foreign investor. In these scenarios,
the principle of good faith acts as a normative lens
through which a s
tate’s conduct is evaluated,
transcending formalist arguments that might otherwise
shield the state behind claims of policy prerogative.
This approach promotes a measure of predictability
and fairness in cross-border dealings, as states are
encouraged to reconcile their sovereign powers with
the reliance interests of private parties. Ultimately,
while good faith remains somewhat malleable and
subject to case-by-case interpretation, it cements the
premise that states do not operate in a legal vacuum
when dealing with private actors; they are instead
bound by minimum standards of conduct that resonate
both in public international law and in domestic legal
orders.
In practical terms, the application of these principles
and doctrines varies greatly across regions and legal
systems,
reflecting
differences
in
legislative
frameworks, judicial philosophies, and geopolitical
interests. Some countries have enacted sophisticated
statutes
—often styled as “State Immunity Acts”—
which codify the restrictive approach to immunity and
provide clear guidance on issues such as service of
process on foreign governments, attachment of assets,
and recognition of foreign judgments or arbitral
awards. Other jurisdictions continue to rely on
common law evolution or broad constitutional
provisions, leaving significant discretion to the
judiciary. Meanwhile, on the international plane,
harmonization efforts
—
such as the 2004 United
Nations Convention on Jurisdictional Immunities of
States and Their Property
—
have sought to formalize a
global standard, although not all major powers have
ratified this instrument. Consequently, a mosaic of
practices persists, with states often adopting positions
that best align with their strategic interests, whether to
shield themselves from external liabilities or to
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International Journal of Law And Criminology (ISSN: 2771-2214)
facilitate claims by domestic businesses against foreign
governments.
This disparate landscape underscores that the
international regulation of state responsibility, far from
being settled, remains an arena of active negotiation
and contestation. As private international law
continues to expand its ambit
—
driven by innovations
in global commerce, technology, and social values
—
it
seems likely that the frameworks governing state
responsibility will continue to adapt and possibly
converge, albeit unevenly, to address emerging
challenges and imperatives.
Looking to the future, several trends point to further
complexity and refinement in this field. Firstly, as global
challenges like climate change, pandemics, and cyber
threats intensify, states are adopting new regulatory
measures
—
often with cross-border effects
—
that can
implicate the rights and interests of individuals and
corporations in foreign jurisdictions. These evolving
regulatory landscapes may spur novel claims alleging
state responsibility for harms caused by inadequate
environmental protections, data breaches, or public
health policies.
Secondly, the proliferation of digital platforms and
decentralized finance complicates traditional notions
of territorial jurisdiction and state control, potentially
reshaping how courts and arbitral tribunals ascertain
attribution and causation in cross-border disputes.
Thirdly, the influence of human rights norms continues
to expand, raising the possibility that domestic courts
might become more receptive to tort claims against
foreign states in cases involving systematic abuses,
notwithstanding sovereign immunity defenses. As a
corollary, normative debates about the role of jus
cogens will likely intensify, with some scholars and
practitioners positing that the gravity of certain
violations should automatically strip states of
immunity. Finally, any evolution in state responsibility
frameworks will also hinge upon political will, as
international treaties and conventions require
ratification and consensus-building among states with
divergent legal traditions and strategic priorities.
CONCLUSION
In conclusion, the international regulation and practice
of responsibility of the state as a participant in private
international law epitomize the blending of public and
private legal spheres, highlighting the ways in which
sovereignty, once jealously guarded and deemed
absolute, can be balanced with the need for redress
when governmental actions cause harm to foreign
investors, businesses, or individuals. The doctrinal
building blocks
—
ranging from the restrictive theory of
immunity to investor
–
state arbitration, from human
rights litigation to the principle of good faith
—
reveal a
nuanced tapestry of legal norms that govern how and
when states can be called to account in settings
traditionally reserved for private-party disputes. While
these developments offer powerful tools for
addressing international wrongdoing, they also
generate concerns about the potential erosion of
sovereign prerogatives and the perceived legitimacy of
imposing liability on states outside conventional inter-
state channels. The practice in courts and tribunals
across the globe suggests that there is no one-size-fits-
all solution to these dilemmas.
Instead, each jurisdiction navigates a complex interplay
of statutes, case law, and treaties, as well as diplomatic
and policy considerations. Consequently, the legal
architecture governing state responsibility in private
international law continues to evolve, guided by the
shifting currents of economic globalization, human
rights advocacy, and international cooperation. The
ultimate challenge and opportunity lie in forging a
delicate equilibrium, one that respects the dignity of
states while ensuring that injured parties do not face
insurmountable barriers to achieving meaningful
redress.
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Brownlie, I. (2008). Principles of Public International
Law. Oxford University Press.
Collins, L. (Ed.) (2005). Essays on State Immunity.
Oxford University Press.
Crawford, J. (2013). State Responsibility: The General
Part. Cambridge University Press.
Dicey, A. V., Morris, J. H. & Collins, L. (2012). The
Conflict of Laws. Sweet & Maxwell.
Dickinson, A., Lindsay, R., & Loonam, J. P. (Eds.) (2004).
State Immunity: Selected Materials and Commentary.
Oxford University Press.
ICSID Convention (1965). International Centre for
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Shaw, M. N. (2017). International Law. Cambridge
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