The claimant investors brought arbitration proceedings against the Republic of Zimbabwe pursuant to a Zimbabwe–Switzerland bilateral treaty. In accordance with the arbitration clause in the treaty, the arbitration was conducted pursuant to the Convention which established the International Centre for Settlement of Investment Disputes (“the ICSID Convention”). An award was made in the claimants’ favour which Zimbabwe applied to have annulled on jurisdictional grounds. The ICSID annulment committee upheld the tribunal’s decision that the dispute fell within the scope of the arbitration agreement and refused Zimbabwe’s application. The Commercial Court granted the claimant’s application, pursuant to section 2 of the Arbitration (International Investment) Disputes Act 1966 and CPR r 62.21, for registration and entry of judgment on the award. Zimbabwe applied to set the registration order aside on the ground that it was immune from the jurisdiction of the UK courts by virtue of section 1(1) of the State Immunity Act 1978. The claimants contended that (1) the obligation in article 54 of the ICSID Convention to recognise an ICSID award as binding and enforce it as if it were a final judgment of a national court, constituted a prior written agreement to submit to the jurisdiction of the United Kingdom courts for the purposes of the exception to immunity in section 2 of the 1978 Act, and/or (2) Zimbabwe had agreed to submit the dispute to arbitration for the purposes of the exception in section 9, and the court could not re-examine the ICSID tribunal’s decision, upheld by the annulment committee, that the dispute fell within the scope of the arbitration agreement.
On Zimbabwe’s application—
Held, (1) article 54(1) of the ICSID Convention was a waiver of state immunity in relation to recognition and enforcement, but there was a conceptual distinction between a general waiver and a submission to the jurisdiction. Section 2 of the State Immunity Act 1978 was drafted with reference to specific proceedings before a specific court and accordingly required any submission to be in respect of the jurisdiction which was actually being exercised in those proceedings. The general waiver of immunity under article 54(1), which was unrelated to any identifiable proceedings, was not sufficient to amount to a submission to the jurisdiction of the English courts for the purposes of section 2. So far as the exception in section 9 was concerned, before finding that it applied the English court had to be independently satisfied that there was an agreement to submit the particular dispute and that was so whether or not any particular points had been argued in the arbitration. Given that section 9 was of general application, ICSID awards did not fall to be treated differently from other awards. Accordingly, the claimants had failed to establish that Zimbabwe had submitted to the jurisdiction of the English court within the meaning of section 2 and had also failed to establish the applicability of the arbitration exception in section 9 (paras 62, 66, 68, 71, 73, 84, 87, 88, 90).
But (2) application refused. Section 1(2) of the Arbitration (International Investment Disputes) Act 1966 conferred an entitlement on the applicant to have the award registered which was unqualified save in respect of purely procedural requirements. The court was being asked to perform an essentially ministerial act in accordance with the UK’s international obligations under the ICSID convention. The procedure set out in CPR r 62.21 did not require service of any originating process on the respondent. It was only when service of the order granting recognition was made that the state was formally impleaded and the jurisdiction of the English court formally invoked. Accordingly, it was not open to Zimbabwe to apply to set the registration order on the basis of sovereign immunity (paras 106, 109–110, 120).
Christopher Harris KC and Rumen Cholakov (instructed by Baker & McKenzie LLP) for the claimants.
Salim Moollan KC, Benedict Tompkins and Andris Rudzitis (instructed by Gresham Legal) for the defendant.