FOREIGN STATE IMMUNITY AND ENFORCEMENT OF INTERNATIONAL ARBITRAL AWARDS: ISSUES IN GOLD RESERVE INC V THE BOLIVARIAN REPUBLIC OF VENEZUELA [2016] EWHC 153 (COMM)
Author Profile Monica Feria-Tinta
Monica Feria-Tinta practises in public international law, conflict of laws and international arbitration. She has broad experience acting for States and private parties. Her expertise covers all areas across the field of public international law including Sources, Jurisdiction, Immunities, Treaty Law, State Responsibility, Human Rights law, Investment Arbitration, and their interfaces with commercial matters.
For more on Monica please visit the website
www.20essexst.com
HIGH COURT JUDGMENT ENFORCEMENT OF AN ICSID AWARD AGAINST THE REPUBLIC OF VENEZUELA
Monica Feria-Tinta examines State immunity issues in the recent High Court decision Gold Reserve Inc v Venezuela concerning the enforcement of an ICSID award of US$713 million (plus interests and costs) against a Sovereign State, by reference to the wider context of State immunity principles under international law, as reflected in the State Immunity Act 1978.
The case brought to centre-stage important procedural questions tied to issues of State immunity concerning the recognition and enforcement of awards against foreign States under English law.
“From the date of execution of the arbitration agreement throughout the proceedings and, ultimately, at the time of enforcement of an award, the presence of a State party to the dispute gives a particular coloration to the arbitration process”- observed a publicist writing on international arbitration, back in the 1980’s.1 That particular coloration in the context of enforcement of an international award against a Sovereign State refers to issues of State immunity. But State immunity is not a single brick-like notion. To a public international law mind, it translates immediately into two separate, in the words of the International Court of Justice (“ICJ”), distinct, notions: Jurisdictional Immunity (immunity from suit) and Enforcement Immunity. 2
As a general rule, whilst “a State is not entitled to plead immunity from jurisdiction once it has agreed to submit a dispute to arbitration” (“by agreeing to arbitrate a dispute, the State essentially waives the immunity from jurisdiction defence”),3 “immunity from enforcement enjoyed by States in regard to their property situated on foreign territory goes further than the jurisdictional immunity enjoyed by those same States before foreign courts”.4 As put by the ICJ, “[e]ven if a judgment has been lawfully rendered against a