English Court of Appeal Confirms: Sovereign Immunity Is No Shield to ICSID Registration

In an article recently published by Dispute Resolution Journal, Chiraag Shah and Robin Bachmann discuss discuss two cases before the English Court of Appeal relating to the application of sovereign immunity in the context of the registration of International Centre for Settlement of Investment Disputes awards. As discussed in the article:

"The English Court of Appeal (CoA) recently heard (in a joint hearing) two similar cases relating to the application of sovereign immunity in the context registration of ICSID awards. In Border Timbers Ltd & anor v Republic of Zimbabwe the court took a novel approach to state immunity in the context of an ICSID enforcement action in the English High Court. The CoA has now decided the appeal to that decision, alongside the appeal in Infrastructure Services Luxembourg S.á r.l.; Energia Termosolar B.V. v The Kingdom of Spain [2023] EWHC 1226 (Comm), which considered a similar issue, yet was decided on different reasoning. In both cases, the state party appealed the decision."

"The CoA took the opportunity to clarify the interaction between the State Immunity Act 1978 (SIA) and the Arbitration (International Investment Disputes) Act 1966 (the “1966 Act”) (which implemented the ICSID Convention in UK law). In summary, the CoA confirmed that Article 54(1) of the ICSID Convention constitutes an express waiver of immunity and submission to the adjudicative jurisdiction of the English courts under section 2 of the SIA. The CoA decided that under the circumstances it did not need to decide whether the agreement to arbitrate under the ICSID Convention constituted a waiver of immunity under section 9 of the SIA. This brings England firmly into line with the typical interpretation of the ICSID Convention in most jurisdictions, including the United States."

Read the full article.