¹ Sedelmayer v. Russian Federation, Nytt Juridiskt Arkiv [NJA] 2011-07-01 p. 475 Ö 170-10, at http://www.hogstadomstolen.se/Avgoranden/201l/#ruling (in Swedish) [hereinafter Sedelmayer]. The case is also available at https://lagen.nu/dom/nja/201ls475, including decisions in the lower courts. For an unofficial and fairly good English translation, see http://www.arbitrations.ru/files/articles/uploaded/Supreme_Court_of_Sweden_01072011.pdf. All translations in this case note are by the author.

² Sedelmayer v. Russian Federation (Stockholm Chamber of Commerce July 7, 1998), at http://www.arbitrations.ru/userfiles/file/CaseLaw/Investmentarbitration/Russia/Sedermayer/sedelmayeraward.pdf. Sedelmayer’s efforts to have the arbitral award enforced have resulted in several cases in Germany, including a successful request for sequestration of a Russian building in Cologne, owned by a state-owned corporation. See Sedelmayer v. ‘Company for the Administration of Foreign Property’ of the Russian Federation, No. IX ZR 64/086 (Federal Ct. Justice Nov. 6, 2008), Int’l L. Domestic CTS. [ILDC] 1186 (DE 2008); Sedelmayer v. Russian Federation, Nos. 3T 377/07,3T 405/07 (Regional Ct. Hagen Jan. 16, 2008), ILDC 948 (DE 2008); see also Raeschke-Kessler, Hilmar, Mr. Franz Sedelmayer (Germany) v. the Russian Federation: Two Decisions by Germany’s Supreme Court, 2006 Stockholm Int’l Arb. Rev. 71, available at http://www.sccinstitute.eom/filearchive/2/21311/franz_sedelmayer_v_russian_federation.pdf Google Scholar (discussing Sedelmayer v. Russian Federation, Nos. VII ZB 08/05, VII ZB 09/05 (Federal Ct. Justice Oct. 4, 2005)). In the successful case in Cologne, the Russian Federation had to buy back its property at public auction.

³ For excerpts and commentary by Walid Ben Hamida, Stefan Kröll & Jörn Griebel, and Domenico di Pietro, see Mr. Franz Sedelmayer v. The Russian Federation: I. Final Arbitral Award Rendered in 1998 in an ad hoc Arbitration in Stockholm, Sweden; II: Judgment by the Stockholm District Court Rendered on 18 December 2002; III: Decision by the Svea Court of Appeal Rendered on 15 June 2005, 2005 Stockholm Int’l Arb. Rev. 37, available at http://www.sccinstitute.eom/filearchive/2/21315/franz_sedelmayer_russian_federation.pdf.

⁴ In Sweden, foreign arbitral awards are enforceable subject to an application to the Svea Court of Appeal. The current case did not, however, concern enforcement of the arbitral award as such, but only of the Swedish order that Sedelmayer be reimbursed for litigation costs incurred during the challenge process in Swedish courts.

⁵ The Swedish Enforcement Authority is responsible for the enforcement of both public and private claims. For information on the authority in English, see its website at http://www.kronofogden.se/.

⁶ United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res. 59/38, annex (Dec. 2, 2004) [hereinafter UN immunities convention]. For a detailed discussion of the convention, see Stewart, David P., The UN Convention on Jurisdictional Immunities of States and Their Property, 99 AJIL 194 (2005)CrossRefGoogle Scholar.

⁷ Sweden ratified the convention in December 2009; Russia signed it in December 2006 but has not yet ratified it. The convention is not yet in force since, as of this writing, it has been ratified by only thirteen of the required thirty states. See MTDSG [Multilateral Treaties Deposited with the Secretary-General], at http://treaties.un.org/.

⁸ For a similar view, see Reinisch, August, European Court Practice Concerning State Immunity from Enforcement Measures, 17 Eur. J. Int’l L. 803, 835 (2006)Google Scholar. But see Bankas, Ernest K., The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts 346 (2005)Google Scholar.

⁹ Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95.

¹⁰ See also Sedelmayer, para. 22: “The other use of the property was for purposes under private law that were of a noncommercial, but also a nonofficial nature . . . .”

¹¹ Överenskommelse med Ryska federationen om ekonomiskt och tekniskt-vetenskapligt samarbete inom jordbruk och livsmedelsindustri [Agreement with the Russian Federation on Economic and Technical-Scientific Cooperation Concerning Agriculture and Food Processing] (Aug. 18, 1994). The agreement is published in the treaty collection of the Swedish government, Sveriges internationella överenskommelser, SÖ 1994:51, available at http://sweden.gov.se/content/l/c6/l0/18/37/11232fc3.pdf. Article 5 provides that costs for visits shall be borne by the visiting party. Perhaps the conclusion would have been different if the bilateral agreement had stipulated that the visiting party should provide apartments for the scientists and students.

¹² The Swedish expression employed by the Court is kvalificerad natur. There is no exact equivalent in English. The expression indicates that the use is special in some sense, as distinct from common, which in this context indicates that the use is for sovereign purposes (para. 14).

¹³ Article 21 (1 ) (a) of the UN immunities convention, supra note 6, provides that “property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State” “shall not be considered as property specifically in use or intended for use by the State for other than government non-commercial purposes.” However, the Court referred to Article 21 en passant and there is no indication that it applied the underlying customary rule directly or indirectly.

¹⁴ The Swedish word used in the decision, övervägande, means “more than not” or, in mathematical terms, more than 50 percent.

¹⁵ See note 12 supra.

¹⁶ Sverige uppkallas till ryska UD [Sweden Summoned to the Russian Ministry of Foreign Affairs], Svenska Dagbladet, July 7, 2011, at http://www.svd.se/nyheter/inrikes/sverige-uppkallat-till-ryska-ud_6301620.svd.

¹⁷ For a full review of Swedish court practice on immunity, see the governmental report Immunitet För Stater Och Deras Egendom [Immunity of States and Their Property], Statens Offentliga Utredningar, Sou 2008:2, at 75-116 [hereinafter SOU 2008:2]. See also Mahmoudi, Said, Immunitet i svenska domstofor [Immunity in Swedish Courts], in Folkrätten I Svensk Rätt 165 (Stern, Rebecca & Österdahl, Inger eds., 2012)Google Scholar.

¹⁸ Mahmoudi, Said, Case Report: Local Authority of Västerås v. Republic of Iceland, in 95 AJIL 192 (2001)CrossRefGoogle Scholar.

¹⁹ SOU 2008:2, supra note 17, at 94, 96.

²⁰ Bostadsrättsföreningen Villagatan 13 v. Kingdom of Belgium, NJA 2009-12-30 p. 905 О 2753-07.

²¹ The International Law Commission did not define “commercial,” but at least one of its members thought of the term this way. Draft Articles on Jurisdictional Immunities of States and Their Property, with Commentaries, in Report of the International Law Commission on the Work of Its Forty-third Session, [1991] 2 Y.B. Int’l L. Comm’n, pt. 2, at 13, 19, para. 20, UN GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10 (1991).

²² UN immunities convention, supra note 6, Art. 11(2)(a), (b). For a recent decision by the European Court of Human Rights on immunity regarding employees of diplomatic premises, see Bederman, David J., Case Report: Sabeh el Leil v. France, in 106 AJIL 125 (2012)CrossRefGoogle Scholar.

²³ The distinction between official and nonofficial is, of course, arbitrary. For a book-length critique of this distinction, see Bankas, supra note 8.

²⁴ In a recent judgment, the International Court of Justice may have adopted a similar approach, when it found a German property in Italy, Villa Vigoni, to be immune since the German use was “entirely non-commercial, and hence for purposes falling within Germany’s sovereign functions.” Jurisdictional Immunities of the State (Ger. v. It.: Greece Intervening), para. 119 (Int’l Ct. Justice Feb. 3, 2012) (emphasis added), at http://www.icj-cij.org/.

²⁵ See Sedelmayer v. Russian Federation, No. ÖÄ 4239-08 (Svea Ct. App. Dec. 17,2009) (in Swedish), at https://lagen.nu/dom/nja/2011s475 (stating: “It is for a court to apply the international law principles of immunity . . . .”).

²⁶ Lag Om Immunitet För Stater Och Ceras Egendom [Law on Immunity of States and Their Property] (Svensk Författningssamling 2009:1514), available at http://www.notisum.se/rnp/sls/sfs/200915l4.pdf. Before that law was introduced, an expert report was written in which legislation and court practice in Sweden and several other countries were reviewed. SOU 2008:2, supra note 17.

²⁷ See the government bill Immunitet for stater och deras egendom at 96-97,100- 09, published as Proposition 2008/09:204 in the collection Regeringens Propositioner & Skrivelser, and also available at http://www.regeringen.se/content/1/c6/12/92/91/7d07a243.pdf [hereinafter Bill].

²⁸ For a brief discussion on early court practice regarding the relation between general international law and the U.S. Foreign Sovereign Immunities Act, see Crawford, James, Execution of Judgments and Foreign Sovereign Immunity, 75 AJIL 820, 845-47 (1981)CrossRefGoogle Scholar.

²⁹ Bill, supra note 27, at 108.

³⁰ It is often held that the only parameter that limits domestic freedom of action in this field is the law of state immunity, meaning that a state is free to apply the absolute doctrine of immunity. See, e.g., Crawford, supra note 28, at 855-56. To do so, however, might entail a violation of the tight to access to justice. Cf. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, paras. 9-13, available at http://www.echr.coe.int/ (holding, by only 9-8, that the right to access to justice had not been violated when English courts accepted a plea of immunity by Kuwait in a case concerning compensation for alleged torture).