Abstract
This contribution to the survey of sovereign immunity issues in international commercial arbitration addresses the specific problems associated with the execution of an international arbitral award sought by a private party against a state. At the outset, we should stress that, in our opinion, only actual execution constitutes a separate phase from the arbitral proceedings. By contrast, recognition and enforcement of the award are the direct consequence and logical final step of the arbitral proceedings. Therefore, issues of immunity raised during recognition and enforcement procedures should be viewed as issues of immunity from jurisdiction.1 Hence, we shall consider the case of a state claiming immunity at the moment of actual enforcement of an award, once jurisdictional issues have been resolved and the arbitral award has been recognised. We shall refer to this case as immunity from execution. The immunity plea would then refer only to the state’s alleged immunity from enforcement by measures of execution against its property.
The authors wish to express their gratitude to Dott Silvia Borelli of the law offices of Van Doorne & Sjollema, Rotterdam, and assistant to the General Editor of the Yearbook: Commercial Arbitration, for her invaluable assistance in preparing this paper.
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References
See the Swiss LIAMCO case, Libyan American Oil Company v Socialist People’s Libyan Arab Jamahirya, decided by the Tribunal Federal on June 19, 1980, reported in VI Yearbook: Commercial Arbitration (1981). See also Cour d’Appel of Paris, June 26, 1981, Benvenuti and Bonfant v The Government of the People’s Republic of the Congo, reported in G Delaume, Transnational Contract, (Dobbs Ferry 1978–1984), Vol V, Booklet F at 81.
See M Boguslavsky, ‘Foreign State Immunity: Soviet Doctrine and Practice’, 10 Netherlands Yearbook of International Law (NYIL) (1979), and F Enderlein, ‘The Immunity of State Property from Foreign Jurisdiction and Execution: Doctrine and Practice of the German Democratic Republic’, 10 NYIL 111 (1979). It must be mentioned that a slightly discordant opinion has been expressed as regarding Yugoslav law by T Varady, ‘Immunity of State Property from Execution in the Yugoslav Legal System’ 10 NYIL 85 (1979). However, the author also refers to Yugoslav doctrine to the contrary.
K H Böckstiegel, Arbitration and State Enterprises (Deventer 1984), at 50.
JF Lalive, ‘Swiss Law and Practice in Relation to Measures of Execution Against the Property of a Foreign State’, 10 NYIL 153 (1979).
This is possible since the 1963 decision of the Italian Constitutional Court declaring unconstitutional the last paragraph of Article 1, which excluded such challenge.
L Condorelli and L Sbolci, ‘Measures of Execution against the Property of Foreign States: The Law and Practice in Italy’, 10 NYIL 197 (1979).
Law No 15 of 1938.
Yugoslav Law on Enforcement Procedure of 1978.
Article 13, paragraph 4, of the Deurwaardersreglement, as translated by C Voskuil, ‘The International Law of State Immunity as Reflected in the Dutch Civil Law of Execution’, 10 NYIL 245, (1979) at 261.
Cappelletti-Perrillo, Civil Procedure in Italy (The Hague 1965), at 96.
Ibid.
M Luzzatto, ‘International Commercial Arbitration and the Municipal Law of States’, 157 Recueil des Cours de l’Academic de Droit International (1977), at 93.
Reported in I Yearbook: Commercial Arbitration 133 (1976), at 135.
Washington Convention, Article 53.
Ibid, Artide 54(1).
Ibid, Artide 27(1).
Enderlein, op cit, at 120.
See JF Lalive, op cit, at 162.
United Arab Republic v Mrs X, Tribunal Federal, February 10, 1960, Clunet 458 (1961).
See SA Sogerfin v Yugoslavia (1938), 61 Semaine Judiciaire 327 (1939), and Kingdom of Greece v Julius Bar& Co (1956), ATF 82 I 75.
Article IX of the Introductory Law to the Rules on Jurisdiction Law of August 1, 1895, as translated by I Seidl-Hohenveldern, 10 NYIL 97 (1979).
Neustein v Republic of Indonesia, August 6, 1958, case No 6.
Austrian Supreme Court, February 10, 1961, 84 Juristische Blatter 63 (1962).
As translated by I Seidl-Hohenveldern, op cit, at 107.
Federal Constitutional Court, December 13, 1977, Philippine Embassy Bank Account case, 46 BVerfGe 342(1977).
Federal Constitution Court, April 12, 1983, National Iranian Oil Company case, 37 Westpapier-Mitteilungen Zeitschrift fur Wirtschafts- und Bankrecht 722 (1983).
Foreign Immunities Act 1976, sl610(a).
Ibid, sl610(a)(l) and (b)(1).
Article 22, paragraph 3, of the Vienna Convention on Diplomatic Relations of 1961 grants immunity from execution to ‘the premises of the mission, their furnishings and other property thereof, and the means of transport of the mission’. Article 31, paragraph 4, of the Vienna Convention on Consular Relations of 1963, provides for the immunity of consular premises, property and means of transport from requisition. However, immunity from execution ‘may be justified on the basis of the inviolability of the consular archives and documents’. Bouchez, The Nature and Scope of State Immunity from Jurisdiction and Execution’, 10 NYIL 3 (1979). The Brussels Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, of 1926, prohibits execution against warships, government yachts, patrol vessels, hospital ships, auxiliary and supply ships, and on cargoes carried on board the said vessels, as well as cargo owned by the state and not used for commercial purposes, carried on board merchant vessels (Article 3). Aircraft used for governmental service (ie, also postal service), and on regular flights are immune from execution according to the Rome Convention on Precautionary Attachment on Aircraft 1933 (Article 3).
European Convention on State Immunity with Additional Protocol, done at Basle on May 16, 1972.
Ibid, Article 23.
State Immunity Act 1978, sl3(4).
Ibid, sl3(5).
See recent House of Lords decision, Alcorn Limited v Republic of Columbia [1984] AC 580.
AJ Van den Berg The New York Arbitration Convention of 1958 (Deventer 1981), at 51–3.
G Delaume, ‘Foreign Sovereign Immunity: Impact on Arbitration’, 38 Arbitration Journal 34 (1983) at 45.
A United States seat of the arbitration was held insufficient as a nexus in Verlinden BV v Central Bank of Nigeria, 488 F Supp 1284 (SDNY 1980). The decision was affirmed, but on different grounds by the United States Court of Appeals for the Second Circuit, on April 16, 1981. This decision is reported in 20 ILM 639 (1981). The Supreme Court reversed this decision on May 23, 1983, 22 ILM 647 (1983).
See supra, n1.
United States District Court for the District of Columbia, January 18, 1980, reported in VI Yearbook: Commercial Arbitration 248 (1981).
Tribunal de Grande Instance of Paris, March 5, 1979, Procureur de la Republique v Société LIAMCO, 106 Clunet 857 (1979).
Court of Appeal of Svea, June 18, 1980, reported in VII Yearbook: Commercial Arbitration 359 (1982).
Tribunal de Grande Instance of Paris, July 8, 1970, Societe Europenne d’Etudes et d’Enterprises v People’s Federal Republic of Yugoslavia, 96 Clunet 131 (1971), and Court d’Appel of Paris, January 29, 1975 [1975] Revue de l’Arbitrage 328.
Hoge Raad, October 26, 1973, in Netherlands Jurisprudentie No 361.
Tribunal de Grande Instance of Paris, September 12, 1978, Procureur de la Republique v SA Ipitrade International, 106 Clunet 857 (1979).
Cour de Cassation, EURODIF Corporation v Islamic Republic of Iran, in Semaine Juridique 1984, II, 20205.
As translated in 23 ILM 1062 (1984).
Ibid.
The exequatur was granted in The Netherlands (President of the District Court of Amsterdam, July 12, 1984, reported in X Yearbook: Commercial Arbitration 487 (1985)), whilst in France the award was annulled on the same day (Cour d’Appel of Paris, July 12, 1984, reported in X Yearbook: Commercial Arbitration, 113 (1985)).
Arbitration Act 1975, s5(5) reads: ‘Where an application for the setting aside or suspension of a Convention award has been made to such a competent authority as is mentioned in sub-section (2)(f) of this section, the court before which enforcement of the award is sought may, if it thinks fit, adjourn the proceedings and may, on the application of the party seeking to enforce the award, order the other party to give security’.
Court of Appeal, October 24, 1983, Alcorn Ltd v The Republic of Colombia, [1984] AC 580 reported also in 78 Am J Intl L 451 (1984).
[1984] AC 580.
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Bernini, G., Van den Berg, A.J. (1987). The enforcement of arbitral awards against a state: the problem of immunity from execution. In: Lew, J.D.M. (eds) Contemporary Problems in International Arbitration. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-1156-2_34
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