State Immunity and Employment Disputes in Sweden - The Application of the Restrictive Doctrine and the Distinction between Sovereign and Commercial Acts

Sammanfattning

This thesis examines how the restrictive doctrine of state immunity is approached and applied in Sweden. The thesis focuses on disputes involving the distinction between sovereign and commercial acts in general, and employment disputes in particular. The thesis uses a legal dogmatic method with elements of legal analysis, where the analysis is primarily based on case law from the Supreme Court of Sweden and the Swedish Labour Court. International legal sources, including customary international law, the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI), the European Convention on State Immunity (ECSI), international jurisprudence and legal doctrine, are used as an interpretative framework for understanding the Swedish approach and placing Sweden in an international context. The thesis concludes that Sweden clearly adheres to the restrictive doctrine of state immunity and recognises the distinction between sovereign and commercial acts as decisive for determining the scope of immunity. However, the case law does not reveal a clear or uniform method for making this distinction. Instead, the assessment remains contextual and dependent on circumstances of the individual case. This is particularly evident in employment disputes, where courts must balance the sovereign interests of foreign states against the employee’s interest in access to justice. The analysis shows that the Labour Court attaches considerable weight to the status and functions of the employee when assessing immunity. Employees whose duties are closely connected to the exercise of sovereign authority are more likely to fall within the scope of immunity, while employees performing practical or administrative functions are generally not covered. The thesis further identifies a gradual movement towards a more structured approach influenced by the UNCSI. Recent decisions such as AD 2020 nr 43 and AD 2022 nr 47 suggest that the Labour Court increasingly relies on Article 11 of the UNCSI. Overall, the thesis concludes that the Swedish application of the restrictive doctrine remains difficult to predict in individual cases, especially in employment disputes involving foreign states. The increasing influence of the UNCSI in Swedish case law may, however, contribute to a more predictable application of the doctrine in the future.