AIIB协定下国家豁免原则与中国法的冲突与协调

Conflict and Coordination in State Immunity under AIIB Agreement and Chinese Law

亚投行作为首个由中国发起成立的国际金融组织,从意向创始成员国的积极态度和经济实力可以知其将如期在2015年年底前成立。亚投行的运作在受到国际法和中国法双重约束的同时,也给中国法和中国法院带来新的挑战。正如AIIB协定在国家豁免问题上采取的是限制豁免立场,但中国向来主张绝对豁免。随着世界经济形势的新发展,限制豁免立场被美国和欧洲各国的国内立法所采纳,同时也被国际公约等接受。国际实践从绝对豁免向限制豁免发展到当下,中国有必要适时改变立场,通过制定有关国家豁免的专门性法律来明确采纳限制豁免。在法律出台之前,可由最高人民法院出台司法解释来弥补立法空白。

The Asian Infrastructure Investment Bank （AIIB） is the first international financial organization which has based on its establishment and operation in China. Given that enthusiasm demonstrated by Prospective Founding Members （PFMs） , there is no doubt that the AIIB will come into existence as scheduled by the end of 2015. The AIIB will operate under both international law and Chinese domestic law, and legal implications arising from the fact have imposed some unprecedented challenges to Chinese law and Chinese court. The AIIB Agreement has adopted the restrictive immunity doctrine, but China is still officially holding the position of absolute immunity. As the development of world economy, the restrictive immunity doctrine has adopted by American law and european law, and also adopted by international conventions at the same time. The change of international practice from absolute im- munity to restrictive immunity will prove to be one of the essential and accelerating factors to force China to officially modify its position of sovereign immunity in domestic law. As the absence of the Chinese law of State Immunity, the legislative gap can be filled by judicial interpretation from the supreme people＇s court.