The %n%lysis of Austri%n jurisprudence

since 1945 h%s shown th%t in f%ct only

one c%se extensively %ddresses the
problems of identifying the content of
custom%ry rules. It is the well-known
Hoffm%nn v. Dr%lle or Dr%lle v.
Czechoslov%ki% c%se,36 % le%ding 1950
Austri%n Supreme Court c%se con-
firming the restrictive st%te immunity
doctrine. Its exempl%ry discussion of
custom%ry intern%tion%l l%w rightfully
g%ve it % pl%ce in v%rious prominent
textbooks even beyond the Germ%n
spe%king world.37
The c%se %rose from % complex tr%de
m%rk dispute between Mr. Hoffm%nn,
the Austri%n represent%tive of the
Germ%n cosmetics m%nuf%cturer
‘Georg Dr%lleʼ %nd the st%te-owned
comp%ny ‘Jiri Dr%lleʼ, the Czech br%nch
of the Germ%n firm which h%d been
n%tion%lized by Czechoslov%ki% %fter
World W%r II. While the subst%nce of
the dispute rel%ted to the potenti%l
extr%territori%l effect of the
Czechoslov%k n%tion%liz%tion decree
(which
w%s eventu%lly denied) the prelimin%ry
question for the courts w%s whether %
foreign st%te could be sued before
Austri%n courts with reg%rd to % dispute
involving the use of tr%dem%rks. The
cl%im%nt h%d sought %n injunction
%g%inst the Czechoslov%k st%te-owned
comp%ny to restr%in it from cl%iming the
exclusive right to use the Dr%lle
tr%dem%rk in Austri%. The Austri%n
Supreme Court c%me to the conclusion
th%t since the respondentʼs cl%im to
immunity from jurisdiction concerned
the commerci%l %ctivities of % foreign
sovereign st%te r%ther th%n its politic%l
%ctivities, the respondent w%s subject
to the jurisdiction of the Austri%n
courts.38 While this result is not
surprising under % restrictive immunity
st%nd%rd,39 the rem%rk%ble p%rt of the
decision is the thorough %nd in-depth
%n%lysis which led the Court to
conclude th%t the doctrine of %bsolute
st%te immunity w%s no longer gener%lly
%ccepted %nd th%t there w%s thus no
custom%ry intern%tion%l l%w oblig%tion
to %ccord immunity to Czechoslov%ki%.
After %n initi%l ex%min%tion of the
pertinent Austri%n c%se-l%w on st%te
immunity, where in ten of its previous
decisions immunity h%d been p%rtly
denied where % respondent st%te h%d
%cted like % priv%te undert%king, the
Supreme Court concluded th%t ‘it
c%nnot be s%id th%t there is %ny
uniformity of c%se l%w in so f%r %s
concerns the extent to which foreign
st%tes %re subject to Austri%n
jurisdiction.ʼ40
It then turned to %n %n%lysis of foreign
jurisprudence, recognizing th%t the
issue whether foreign st%tes were
immune reg%rding their commerci%l
%ctivities w%s % question of
intern%tion%l l%w %nd th%t such %
potenti%l rule of custom%ry
intern%tion%l l%w could be %scert%ined
best by %n%lysing the judici%l pr%ctice
of st%tes. In the courtʼs words:
In view of the f%ct th%t we %re here
concerned with % question of
intern%tio- n%l l%w we h%ve to ex%mine
the pr%ctice of the courts of civilised
countries %nd to find out whether from
th%t pr%ctice we c%n deduce % uniform
view; this is the only method of
%scert%ining whether there still exists %
principle of intern%tion%l l%w to the
effect th%t foreign st%tes, even in so f%r
%s concerns cl%ims belonging to the
re%lm of priv%te l%w, c%nnot be sued in
the courts of % foreign st%te.41