The Dilemma And Outlet Of State Immunity For Chinese State-owned Enterprises Under U.S. Law

State-owned enterprises(SOEs).as important economic entities in China,play an important role in U.S.-China trade exchanges.Accordingly.SOEs and counterparties inevitably face disputes and friction.The special "state" attribute and commercial nature of SOEs make them closely related to the issue of subject matter eligibility and commercial activity exception in the field of state immunity.Therefore,in the cases of state immunity of SOEs in the United States,the focus of controversy is mainly on the legal status of SOEs,the determination of "commercial activities" in the commercial exceptions.and the application of the "direct effect" clause.Foreign Sovereign Immunities Act is the only legal basis for the U.S.courts and litigants to resolve state immunity issues,coupled with the U.S.case law tradition,this article analyzes the difficulties faced by SOEs in China based on the legal provisions and supplemented by the relevant practices of the U.S.courts,with a view to providing references and lessons for the protection of the interests of the state and SOEs in terms of legislation,judicial and corporate litigation strategies.According to the provisions of the FSIA,state-owned enterprises directly funded and controlled by China enjoy the status of state immunity in the context of FSIA.Dole Food Co.v.Patrickson has limited the subject of immunity,i.e.,the enterprises indirectly funded and controlled by the state do not have the qualification of the subject of immunity.After qualifying for state immunity.U.S.courts will examine whether there are exceptions to the immunity,of which the commercial activity exception is the most frequently applied provision.The application of the commercial activity exception focuses on whether the conduct performed by the foreign state is a commercial activity and whether the commercial activity takes place in or is carried out in the United States,or is carried out outside the United States but has a direct impact on the United States.If our SOEs meet any of the above conditions,U.S.courts will have jurisdiction over our SOEs and other subjects,which means that our SOEs cannot enjoy state immunity.However,in the analysis of the legal text and practice,it is found that the U.S.courts frequently do formal review of the legal status of our SOEs,so that our SOEs enjoy preliminary subject matter eligibility for immunity,while subsequently limiting the possibility of successful state immunity assertion by SOEs through the commercial exception clause.Chinese SOEs are faced with numerous dilemmas such as inconsistent criteria for judging the eligibility of subjects,unclear criteria for judging commercial activities and expanded interpretation of the direct impact clause.Taking the enactment of the Draft Foreign State Immunity Law in China as an opportunity,we will accelerate the enactment and implementation of the Foreign State Immunity Law precisely in order to alleviate the situation of inequality in immunity.At the same time,clarify the legal status and ownership structure of our state-owned enterprises in China.At the litigation level,our SOEs flexibly change their litigation strategies according to the specific circumstances of the case and effectively apply the relevant rules of U.S.law such as the Foreign Sovereign Immunities Act.