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I concur.

of state immunity cannot be extended to commercial,

private and proprietary acts Uure gestionis ).
Sovereign immunity serves as a bar for the foreign
sovereign to be subjected to the trial process. Since the Philippines adheres to the restrictive
Supported both by local jurisprudence, as well s theory, it is crucial to ascertain the legal nature of the
international law (which forms part of the Philippine act involved - whether the entity claiming immunity
legal structure), the doctrine should not be reversed performs governmental, as opposed to proprietary,
in this particular case. functions. As held in United States of America v.
The restrictive application of State immunity is
Sovereign immunity in Philippine law has been proper only when the proceedings arise out of
lengthily discussed by the Court in China National commercial transactions of the foreign sovereign, its
Machinery & Equipment Corp. v. Hon. Santamaria in commercial activities or economic affairs. Stated
the following manner: differently, a State may be said to have descended
to the level of an individual and can thus be deemed
to have tacitly given its consent to b e sued only
This Court explained the doctrine of sovereign
immunity in Holy See v. Rosario, to wit: when it enters into business contracts. It does not
apply where the contract relates to the exercise of its
soverdgn functions.1 (Emphases supplied. Citations
There are two conflicting concepts of sovereign omitted)
immunity, each widely held and firmly established.
According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a From the Philippine perspective, what determines its
respondent in the courts of another sovereign. ability to impose its law upon the foreign entity would
be the act of the foreign entity - on whether the act
According to the newer or restrictive theory, the
is an aspect of its sovereign function or a private act.
immunity of the sovereign is recognized only with
regard to public acts or acts jurc imperii of a state,
but not with regard to private acts or acts jure In this case, the two Naval Officers were acting
gestionis. pursuant to their function as the commanding
officers of a warship, traversing Philippine waters
under the authority of the Visiting Forces Agreement
(VFA). While the events beg the question of what the
warship was doing in that area, when it should have
The restrictive theory came about because of the been headed towards Indonesia, its presence in
entry of sovereign states into purely commercial Philippine waters is not wholly unexplainable. The
activities remotely connected with the discharge of VFA is a treaty, and it has been affirmed as valid by
governmental functions. This is particularly true with this Court in Bayan v. Zamora,2 and affirmed in Lim
respect to the Communist states which took control v. Executive Secretary3 and Nicolas v. Romulo.4 It
of nationalized business activities and international has, in the past, been used to justify the presence of
trading. United States Armed Forces in the Philippines. In
this respect therefore, acts done pursuant to the VF
In JUSMAG v. National Labor Relations A take the nature of governmental acts, since both
Commission, this Court affirmed the Philippines' the United States and Philippine governments
adherence to the restrictive theory as follows: recognize the VFA as a treaty with corresponding
obligations, and the presence of these two Naval
The doctrine of state immunity from suit has Officers and the warship in Philippine waters fell
undergone further metamorphosis. The view under this legal regime.
evolved that the existence of a contract docs not, per
se, mean that sovereign states may, at all times, be From this, the applicability of sovereign immunity
sued in local comis. The complexity of relationships cannot be denied as to the presence of the warship
between sovereign states, brought about by their and its officers in Pbilippine waters. This does not,
increasing commercial activities, mothered a more however, put an end to the discussion, because
restrictive application of the doctrine. even if immunity is applicable to their presence, the
specific act of hitting the Tubbataha Reef and
xxxx causing damage thereto is a presumably tortuous
act. Can these kinds of acts also be covered by the
As it stands now, the application of the doctrine of principle of sovereign immunity?
immunity from suit has been restricted to sovereign
or governmental activities (jure imperii). The mantle