Background
We have previously examined the High Court’s decision in Antin Infrastructure Services and another v Spain (May 2023), where Mr Justice Fraser (as he then was) of the High Court rejected Spain’s attempt to challenge a registration order of an ICSID award that was made against it on the grounds of state immunity and non disclosure.
In a subsequent decision on a different matter, Mrs Justice Dias held that Zimbabwe could not rely on state immunity to object to the registration of an ICSID award, although for entirely different reasons (Border Timbers v Zimbabwe). Notably, she held that the registration of an ICSID award is “an essentially ministerial act in compliance with the UK’s international obligations under the ICSID Convention” that does not involve any adjudication; therefore, there was no need to consider Zimbabwe’s objections pertaining to state immunity at all.
Both Spain and Zimbabwe appealed, arguing that: (1) they are entitled to state immunity under s1(1) of the State Immunity Act 1978 (SIA), which confers adjudicative immunity from the jurisdiction of UK courts on foreign States; and (2) the exceptions to immunity under ss2 and 9 SIA do not apply. These exceptions provide that a State is not immune if: (a) it has submitted to the jurisdiction of the courts of the United Kingdom (s2 SIA); or (b) it has agreed in writing to arbitration and the proceedings in the courts of the United Kingdom relate to the arbitration (s9 SIA).
Court of Appeal judgment
The Court of Appeal heard the appeals jointly and held in favour of the claimants, dismissing Spain’s and Zimbabwe’s immunity objections.
The Court of Appeal held that:
- Contrary to Dias J’s view, the registration of an arbitral award as a judgment of the court is not merely a ministerial or administrative act. The judge would need to be satisfied regarding the proof of authenticity and other evidential requirements. According to the court of Appeal, “there could not be a clearer case of the English court exercising its adjudicative jurisdiction over a foreign state than entering judgment against that state on the basis of a decision that the requirements of a United Kingdom statute had been met”. Accordingly, s1(1) of the SIA may apply, and the court must therefore address whether the exceptions to immunity under ss2 and 9 SIA apply.
- Article 54 of the ICSID Convention (“Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”) reflects a clear agreement by Contracting States to the ICSID Convention, including Spain and Zimbabwe, to waive immunity and submit to the jurisdiction of the UK courts, satisfying s2(2) SIA. In reaching this conclusion, the Court of Appeal cited with approval the views of the High Court of Australia, which considered and dismissed many of the same arguments Spain and Zimbabwe were raising, noting that it is desirable that international treaties are interpreted by national courts uniformly. In particular, the Court of Appeal agreed with the High Court of Australia that if the express words used by the State, on their proper construction, amount to an agreement by the State to submit to the jurisdiction of the UK court, that is sufficient to satisfy s2(2) SIA, even if the words “submit” and “waiver” are not used. The Court of Appeal found that Article 54 of the ICSID Convention satisfies this test.
The Court of Appeal did not decide on whether s9 SIA applied, since it had already concluded that s2 SIA operates as an exception to adjudicative immunity under s1(1) SIA.
Comment
The Court of Appeal’s judgment reaffirms the position that the registration of ICSID awards in the United Kingdom, including intra-EU awards, is intended to be a straightforward process.
