foreign State, in circumstances such that the latter could not claim immunity from jurisdiction, it does not follow ipso facto that the State against which judgment has been given can be the subject of measures of constraint on the territory of the forum State or on that of a third State, with a view to enforcing the judgment in question. Similarly, any waiver by a State of its jurisdictional immunity before a foreign court does not in itself mean that that State has waived its immunity from enforcement as regards property belonging to it situated in foreign territory.” 5
The UK State Immunity Act 1978, which governs the law of state immunity in the United Kingdom, “embodying the ‘restrictive’ theory of state immunity”6, reflects this distinction between jurisdictional and enforcement immunity. Under the 1978 State Immunity Act, “[…] waiver of immunity from jurisdiction does not per se entail waiver of immunity from execution of any resulting judgment [or for the purposes of this article, award]” as for that, “a separate waiver is required”7. Thus, “submitting to the jurisdiction of the courts is not to be regarded as a consent to execution”8. In the same vein, voluntary submission to jurisdiction [as in the case of arbitration, by means of an arbitration agreement], “does not extend to measures of execution”. 9
To a practising public international law mind, drawing the precise contours of such two distinct notions, jurisdictional and enforcement immunity, require the use of even thicker a lens than the one used at merely theoretical level when legal notions are put into motion by means of procedure. Further precisions are to be made.
What immunity?
What immunity–if any- is involved in the enforcement of an international arbitral award in the forum State where a party is seeking its enforcement? Or to put it more sharply, what type of immunity may be at stake in an
application for leave to enforce an award?
Indeed, “[e]xecution proper can ensue only after recognition of the award in the form of a confirmation, an exequatur, or similar proceedings.”10 If in the past the nature of such proceedings was still a matter of controversy “in the sense that they m[ight] be regarded as the ultimate phase of the arbitration process or as the preliminary phase of execution”,11 this has gained clarity today. Recognition of an award and execution are two different notions. The proceedings for recognition are jurisdictional in nature (and covered by a waiver of jurisdictional immunities), the execution, governed by the rules on
KEY TAKEAWAYS
Recognition of an award and execution are two different notions. The proceedings for recognition are jurisdictional in nature (and covered by a waiver of jurisdictional immunities), the execution, governed by the rules on enforcement immunities.
Underlying the case is the fundamental question of what is the correct method by which court proceedings are to be served on States in the context of enforcement of awards in England and when is an ex parte order appropriate.
Gold Reserve v the Bolivarian Republic of Venezuela leaves us with an unsettled statement of the law in that regard. The procedural questions it raises remain issues to be clarified in the future by the English courts.