Unión Fenosa Gas SA v Arab Republic of Egypt

This was an application by the respondent state, Egypt, to set aside an order of Teare J dispensing with service on Egypt of an order of Males J registering an ICSID arbitration award as a judgment pursuant to CPR r. 62.21 and declaring that the claimant was not required to serve the claim form on Egypt, and to set aside an order of Waksman J for alternative service on Egypt's solicitors.

In August 2018, the claimant investor had obtained an arbitration award against Egypt pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and the bilateral investment treaty between Spain and Egypt. The registration and enforcement of ICSID awards in English courts was governed by the Arbitration (International Investment Disputes) Act 1966 and by CPR r. 62.21 which applied specifically to ICSID arbitration awards.

The claimant issued an arbitration claim form and applied without notice for registration of the award pursuant to the provisions of r. 62.21. In December 2018 Males J made an order for registration of the award as a judgment. The claimant sought to serve the Males J order on Egypt by submitting a copy to the Royal Courts of Justice's Foreign Process Section for service on Egypt via the Foreign and Commonwealth Office, as required by CPR r 6.44.

The order was transmitted through the FCO to the Egyptian Ministry of Foreign Affairs in April 2019, but returned to the British Embassy on the basis that the documents had not been properly addressed. Egypt nevertheless instructed English solicitors, who were not instructed to accept service. The solicitors took the view that r. 62.21(3) required an application to have an award registered under s. 1 of the 1966 Act to ‘be made in accordance with the Part 8 procedure’ including service of the claim form, which was also required by s. 12 of the State Immunity Act 1978.

In October 2019, Teare J granted the claimant's without notice application for an order under r. 6.28 dispensing with service of the Males J order and for a declaration that the claimant was not required to serve the claim form on Egypt. In November 2019, Waksman J granted the claimant's without notice application for alternative service under r. 6.27 of the Teare J order on Egypt's solicitors. Egypt applied to set aside the orders of Teare J and Waksman J.

Held, refusing Egypt's application:

1. CPR r. 62.21 dealt specifically with awards under the 1966 Act. In contrast to the earlier provisions of Part 62, there was no reference at all to any claim form or service thereof. Nor was there any provision relating to service out of the jurisdiction, notwithstanding that such awards would inevitably involve an overseas state. That reflected the different and simplified procedure which existed for registration of ICSID awards and the very limited circumstances in which a state could resist enforcement. The requirement for service of a claim form, or a full Part 8 procedure, was inconsistent with the regime for registration incorporated via r. 62.21(2), which applied a number of provisions of Part 74 whose effect was substantially to equate the process of registration of an award under the 1966 Act with the process applicable to the registration of foreign judgments under the Foreign Judgments (Reciprocal Enforcement) Act 1933. It would be surprising if a more cumbersome procedure had to be followed for the registration of ICSID awards under the 1966 Act, when compared to the procedure for New York Convention awards, in circumstances where the arguments available to the state, if they existed at all, were significantly more limited. Construed in the context of CPR Part 62 as a whole, including the cross-referencing to Part 74, the requirement for an application to be made ‘in accordance with the Part 8 procedure’ did not import the full Part 8 procedure. Rule 62.21 permitted a without notice application leading to an order for registration, of which notice was then given to the state. The state would then have the opportunity, as when any without notice application was made, subsequently to apply to set aside the order, as was expressly provided for in the Males J order.

2. The application to dispense with service had been made many months after Egypt had received notice of the claimant's attempts to enforce the award as a result of the documents sent by the British Embassy in April 2019. As a result of receiving those documents, Egypt then instructed solicitors to deal with the proceedings. Since the application to dispense with service was not made at the same time as applying to register the award, the claimant did not have to show exceptional circumstances. Even if the claimant was required to show exceptional circumstances, it had done so. In any event, there was no merit in the suggestion that the claimant should be required to re-attempt service via the FPS. The evidence showed that the order of Males J had been transmitted from the FCO via the British Embassy in Cairo to the Egyptian Ministry of Foreign Affairs. The relevant documents were clearly received by the Ministry in April 2019. They were then returned to the British Embassy later in April. The receipt by the Ministry was sufficient to fulfil the requirements of r. 6.44 and s. 12 of the SIA. A defendant could not therefore evade service by simply declining to accept delivery. Accordingly, there was a very strong case that the order of Males J was successfully and properly served. Even assuming that it was not, there was every reason for the court to regularise the position, and put the matter beyond doubt, by upholding the order of Teare J which dispensed with service. (Certain Underwriters at Lloyd's v Syria[2018] EWHC 385 (Comm)applied; General Dynamics UK Ltd v Libya[2019] EWCA Civ 1110; [2019] 2 CLC 18considered.)

3. The order of Waksman J was not concerned with instituting proceedings and did not come within the purview of s. 12(1) of the SIA. An order for alternative service was justified: the original Males J order had come to the attention of Egypt as a result of the service in April 2019. The order of Teare J, and the papers lodged in support of that application, had come to the attention of Egypt as well. They had been provided to Egypt's solicitors who had confirmed that they were instructed in relation to the present proceedings, and in October 2019 that they were taking instructions on the Teare J order.

4. The Teare J and Waksman J orders we not liable to be set aside for failure to comply with the duty of full and frank disclosure on the without notice applications.