ABSTRACT
Adopting the restrictive theory means drawing a distinction between sovereign acts (acta jure imperii) and non-sovereign acts (acta jure gestionis). In some cases this is obvious, such as the decision to order military operations. However, in many cases drawing a distinction is not so straightforward. One approach is to look at the nature of the act in issue (that is, the objective approach); a second approach is to look at the purpose of the act (that is, the subjective approach). Suppose we take the case of state A purchasing 10,000 pairs of boots for its army. According to the objective approach that is a commercial contract and a non-sovereign act; however it is strongly arguable that by the subjective approach it would be a sovereign act. The modern tendency has been to follow the objective or nature test and this approach has found favour in a number of jurisdictions.52 Indeed it is arguable that the purpose test is unsatisfactory because all of the intra vires acts of the state have some form of public purpose;53 the state is always acting on behalf of the community as a whole. Thus, there have been a number of authorities that hold that the purpose is irrelevant to the determination.54
