Infrastructure Services Luxembourg Sarl and Another v Kingdom of Spainborder Timbers Ltd and Another v Republic of Zimbabwe

Held, dismissing the appeals, (1) that section 1(1) of the State Immunity Act 1978 did apply to the registration under section 1 of the Arbitration (International Investment Disputes) Act 1966 of an arbitral award that had been made pursuant to the ICSID Convention; that, in particular, (i) it could not be said that such registration was merely a ministerial or administrative act which did not involve any adjudicative step on the part of the English courts in respect of which immunity could arise, there being no 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, (ii) neither the ICSID Convention nor the 1996 Act constituted “matters” that had occurred before the date of the coming into force of the 1978 Act for the purposes of section 23(3) of that Act, so as to be excluded from the ambit of the 1978 Act, and (iii) there was no other reason, as a matter of binding authority or statutory interpretation, why the 1978 Act excluded from its scope, or could not be read harmoniously with, the regime under the 1996 Act; and that, therefore, the express general immunity that was conferred by section 1(1) of the 1978 Act applied to the registration of the ICSID awards in the present case, subject to the exceptions set out in that Act (post, paras 36–39, 41–42, 57–58, 111, 112).

Micula v Romania [2020] 1 WLR 1033, SC(E) considered.

(2) That, on a true construction, each contracting state to the ICSID Convention had by virtue of article 54 thereof agreed with all the other contracting states that they would recognise and enforce ICSID awards in their own jurisdiction and that ICSID awards to which they were party would be recognised and enforced in other contracting states as though they were final judgments; that, so construed, article 54 of the ICSID Convention constituted a prior written agreement by contracting states to submit to the jurisdiction of the courts of England and Wales for the purposes of section 2 of the 1978 Act; that, therefore, on an application to register an ICSID award against a contracting state pursuant to section 1 of the 1966 Act the exception to immunity set out in section 2 of the 1978 Act applied; and that, accordingly, the judges in the present case had been right to refuse the defendants’ applications to set aside the registration orders on the grounds of state immunity, although the application of the defendant in the second case would be remitted to the High Court for directions as to the determination of other defences which it had raised (post, paras 77–82, 96–98, 103, 110, 111, 112).

R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, HL(E), Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2007] QB 886, CA, NML Capital Ltd v Republic of Argentina [2011] 2 AC 495, SC(E) and Kingdom of Spain v Infrastructure Services Luxembourg SARL (2023) 275 CLR 292 considered.

Per curiam. It is difficult to interpret section 9 of the 1978 Act other than as imposing a duty on the court to satisfy itself that the state in question has in fact agreed in writing to submit the dispute in question to arbitration. There is no legal basis which would justify the court in abrogating that duty and considering itself bound by the determination of the ICSID tribunal as to its own jurisdiction in that regard (post, paras 105, 111, 112).

Decision of Fraser J [2023] EWHC 1226 (Comm); [2024] 1 All ER 404; [2024] 1 All ER (Comm) 135 affirmed on partly different grounds.

Decision of Dias J [2024] EWHC 58 (Comm); [2024] 1 WLR 3417; [2024] 2 All ER (Comm) 360 affirmed on partly different grounds.