Experience in the Courts of England and Wales - Chapter 12 - Enforcement of Arbitral Awards Against Sovereigns
Judith Gill, Partner, Allen & Overy LLP
Stephen Jagusch, Partner, Allen & Overy LLP
Anthony Sinclair, Attorney, Allen & Overy LLP
Originally from Enforcement of Arbitral Awards Against Sovereigns
States wishing to avoid the consequences of an adverse (or potentially adverse) arbitral award have employed a number of strategies over the years, ranging from the legitimate insistence upon their rights as sovereigns to more dubious attempts to avoid honouring their agreement to arbitrate or any resulting award. An example of the former is raising well-founded jurisdictional objections or asserting the immunity of sovereign assets, whilst the latter includes blunt refusal to participate in arbitration proceedings, attempts to derail the process through parallel court applications or, exceptionally, intimidation or corruption of the opponent, witnesses or arbitrators. Colourful though a broader discussion would no doubt be, the scope of this chapter is confined to the ability of States legitimately to resist the enforcement of international arbitral awards against them in the courts of England and Wales.
In practice, the first question will be to identify by various means whether there are any assets of the sovereign within the jurisdiction and the second question, which flows from the first, will be to ascertain whether those assets are likely to attract sovereign immunity. For expository reasons, the structure of this chapter takes a different approach. First, in order to set the context for the later discussion, we describe the basic methods for the enforcement of arbitral awards generally in the English courts under the Arbitration Act 1996 (the “Arbitration Act”), other specific statutes and at common law.