“Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.”
“Submission to jurisdiction. (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom. (2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; …”
“If the express words used amount, on their proper construction, to an unequivocal agreement by the state to submit to the jurisdiction, that is sufficient to satisfy section 2(2) of the SIA, even if the words “submit” and “waiver” are not used.”
“We consider that a waiver of immunity by treaty requires a clear and unequivocal expression of the state’s consent to the exercise of jurisdiction. Whether this exists depends upon an exercise of treaty interpretation in accordance with the treaty’s governing law, public international law. For this purpose, the relevant rules of interpretation are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties. Such an expression of consent does not require explicit words such as waiver or submission. Meaning is conveyed not only by the express words used but also by what is necessarily inherent in those words, and by what necessarily follows as a consequence of the use of those words. Accordingly, when considering the waiver of state immunity by treaty, the test is whether the words used necessarily lead to the conclusion that the state has submitted to the jurisdiction.”
“Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . . . 3. There shall be taken into account, together with the context: (a) . . . (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties . . . Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; (b) leads to a result which is manifestly absurd or unreasonable.”
“75. Article 31 thus requires the terms of a treaty to be interpreted in good faith in accordance with their ordinary meaning, in their context, and in the light of the treaty’s object and purpose. A holistic approach is required. Context and object and purpose may be found in the treaty’s text, in other words its surrounding provisions, and in the treaty as a whole, including its preamble. The clear focus of article 31 is, accordingly, on seeking to ascertain the ordinary meaning of the relevant terms of the treaty having regard to context, object and purpose of the treaty as a “single combined operation”: see JTI Polska sp. z o.o. v Jakubowski[2024] AC 621 (para 26, per Lord Hamblen); and Maritime Delimitation in the Indian Ocean (Somalia v Kenya) [2017] ICJ Rep 3, para 64. 76. Article 32 allows for recourse to supplementary material for limited purposes only, emphasising that the court’s task is to interpret the treaty rather than the supplementary material. Where the ordinary meaning of treaty terms can be ascertained by applying the primary rule in article 31 of the Vienna Convention on the Law of Treaties, recourse to supplementary means of interpretation under article 32 is permitted only “in order to confirm” that ordinary meaning. Such confirmation can be drawn from the travaux préparatoires. However, the supplementary means of interpretation in article 32 cannot be used to change or contradict the meaning resulting from the application of article 31. 77. Where, however, the application of the rule in article 31 produces a meaning that is ambiguous or obscure or leads to a manifestly absurd or unreasonable result, the rule in article 32 permits supplementary means to be used to determine the meaning of treaty terms. But such cases “should be rare, and only where two conditions are fulfilled, first, that the material involved is public and accessible, and secondly, that the travaux préparatoires clearly and indisputably point to a definite legislative intention” (Fothergill v Monarch Airlines[1981] AC 251 , 278B-C per Lord Wilberforce; and also Effort Shipping Co Ltd v Linden Management S.A. and others[1998] AC 605 , 623E per Lord Steyn). 78. Article 17(1) of the Vienna Convention on the Law of Treaties provides that: “Without prejudice to articles 19 to 23 [the provisions on reservations], the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree”
“Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State….”
“82. Under article 54(1) each contracting state is obliged to recognise as binding and enforce the pecuniary obligations of an award rendered pursuant to the ICSID Convention as if it were a final judgment of its own courts. It follows that, upon becoming party to the ICSID Convention, a contracting state not only assumes that obligation to recognise and enforce ICSID awards but also consents to the fact that all other contracting states are undertaking the same obligation. As a matter of ordinary language, each contracting state therefore agrees by article 54(1) not only that it will recognise and enforce awards, but also that awards to which it is a party will be recognised and enforced in other contracting states which have undertaken the same obligation. Thus, the United Kingdom has agreed with the other contracting states that it will recognise any ICSID award as if it were a final judgment of its own domestic courts, and the appellant states have agreed to the United Kingdom doing so, and agreed with all contracting states, including the United Kingdom, that this is the United Kingdom’s obligation. On the face of it, this is inconsistent with the preservation of adjudicative immunity. …. 84. These articles draw no distinction between states parties and investor parties and plainly apply to both. On the face of it, the appellant states have agreed that the respondent investors are entitled to have their ICSID awards recognised in the United Kingdom and enforced under domestic law against them as if each were a judgment of the High Court. The High Court is obliged to recognise these awards and enforce them as if they were judgments. This does not affect the position as regards immunity from execution as discussed below. …. 89. The waiver follows from the fact that each contracting state has agreed that all other contracting states are obliged to (“Each Contracting State shall”) recognise and enforce ICSID awards, including as against them in the territories of those other contracting states. These are obligations undertaken on a mutual and reciprocal basis. That necessarily involves an express acceptance by each contracting state that if an ICSID award is rendered against it, then every other contracting state must exercise jurisdiction, if requested, to recognise and enforce that award. …. 93. This conclusion does not involve reading in words or implying terms into article 54(1) of the ICSID Convention. The submission to jurisdiction on a reciprocal basis is deduced from the ordinary meaning of the express and unequivocal terms of article 54(1). On the face of the express words of article 54(1), consent to this provision could not be a clearer submission to the jurisdiction….”
“(i) [I]t is by no means clear that interpreting article 54 as a submission to the jurisdiction for the purposes of section 2(2) of the SIA would necessarily result in article III also being so interpreted. The two provisions are not worded identically, article III referring to the award being enforced “in accordance with the rules of procedure of the territory where the award is relied upon”
“Furthermore, recognition and enforcement proceedings will in all, or almost all, cases involve the courts of one contracting state exercising adjudicative jurisdiction over another contracting state… Contracting states must use existing or newly established mechanisms to achieve the required result, namely, to recognise and enforce awards as if they are final judgments. They must achieve that result in all cases, not just in some cases. To do that there must be an exercise of adjudicative jurisdiction by the forum state. Put another way, a contracting state…cannot simultaneously agree that the United Kingdom “shall” recognise and enforce an ICSID award rendered against them, whilst also claiming immunity from recognition and enforcement that would prevent the United Kingdom from complying with its own ICSID obligations. The obligations to recognise and enforce consented to by the contracting states are therefore inconsistent with the maintenance of immunity.”
“88. It is significant that only immunity from execution is expressly preserved in this scheme. The absence of any preservation of adjudicative immunity in articles 53–55 accords entirely with the obligations in article 54(1) being fundamentally inconsistent with the maintenance of such immunity from adjudicative jurisdiction because the obligation to recognise and enforce an arbitral award as binding necessarily involves an exercise of adjudicative jurisdiction that must have overcome any jurisdictional bar to the exercise of that jurisdiction. Put another way, once there is a binding award, recognised and to be enforced like a final judgment, adjudication has already taken place and the scope for reliance on immunity from adjudicative jurisdiction has passed. It follows that the reciprocal obligations on each contracting state in article 54(1) are inconsistent with the maintenance by contracting states of any such immunity from adjudicative jurisdiction. On the face of it, the terms of article 54(1) mean that there is a waiver of reliance on state immunity.”
“16. The dichotomy between procedural and substantive rules is not always as straightforward as it sounds, partly because the categories are not wholly distinct and partly because they do not exhaust the field. There may be rules of law, such as limitation, which are procedural in the sense that they bar the remedy, not the right, but which operate as a defence. There may be rules of law which require proceedings to be dismissed without consideration of the merits. These may be substantive rules, such as the foreign act of state doctrine, or procedural rules such as state immunity. There may be rules, whether substantive or procedural, which limit the territorial or subject-matter jurisdiction of the domestic courts, and which they have no discretion to transgress. Or the claimant’s right may be circumscribed by a substantive defence, such as privilege in the law of defamation. Or he may simply have no legal right to assert under the domestic law, for example because the law is that no relevant duty is owed by a particular class of defendants although it would be by defendants generally. But these are not refinements with which the Strasbourg court has traditionally been concerned. What the Strasbourg court means by a procedural rule is a rule which, whether technically procedural or substantive in character, has the effect of barring a claim for reasons which do not go to its legal merits; that is to say, rules which do not define the existence or extent of any legal obligation. …. 18. The International Court of Justice has characterised state immunity as procedural: Democratic Republic of the Congo v Belgium(Arrest Warrant of11 April 2000 ) [2002] ICJ Rep 3, paras 59-61; Germany v Italy: Greece Intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99, at paras 92-97. This is correct, but state immunity is not procedural in the sense that the organisation and practices of the courts are procedural. It is procedural in the same sense as that concept has been used in the case law of the European Court of Human Rights. In other words, it requires the court to dismiss the claim without determining its merits. But it leaves intact the claimant’s legal rights and any relevant defences, which remain available, for example, to be adjudicated upon in the courts of the state itself.”
“38. As for the text of the New York Convention, the apparent breadth and generality of Arts I(1) and II(1) are to be considered in the context of Art III. Article III, the provision principally relied upon by the appellants as establishing a waiver of foreign State immunity by State parties to the New York Convention, implies the preservation of foreign State immunity. In Art III, the obligation of contracting States to enforce arbitral awards is expressed to be "in accordance with the rules of procedure of the territory where the award is relied upon". Contrary to the conclusion of the primary judge and the submissions for the appellants, that recognition and enforcement of an arbitral award is to be "in accordance with the rules of procedure of the territory" where the recognition and enforcement that is sought is relevant to the question whether a State's ratification of the New York Convention involved a waiver of foreign State immunity by that State… [T]here is no suggestion in the travaux préparatoires that some narrower, confined approach, such as rules concerning the presentation of documents and translations, was intended by the reference to rules of procedure in Art III. Rather, it is widely accepted that the rules of procedure also include defences to a claim such as limitation periods. So too, the rules of foreign State immunity, although jurisdictional, are treated at international law as rules of procedure. 39. Article III thus qualifies the obligation of contracting States to enforce arbitral awards by reference to whatever rules of foreign State immunity are adopted by the territory where the award is relied upon. That qualification is inconsistent with a waiver of foreign State immunity having occurred merely by ratification of the New York Convention, which would have left no role for the rules of foreign State immunity in the territory where the award is relied upon….”
“To put it …simply: no arbitration agreement, no waiver.”
“…the Committee concluded that it would be desirable to establish a new convention which while going further than the Geneva Convention in facilitating the enforcement of foreign arbitral awards, would at the same time maintain generally recognized principles of justice and respect the sovereign rights of States.” ii) a summary of the travaux by Professor Bjorklund, quoted by the Judge at [77]: “It is clear…based on the negotiating history of the Convention, that the delegates did not intend to preclude an immunity-based argument in enforcement actions against states.”
“Whether, for the purposes of enforcement of (i) the award on jurisdiction and merits dated25 July 2016 , and (ii) the award on quantum dated13 October 2020 (‘the Awards’), India has submitted to the adjudicative jurisdiction of the English courts by prior written agreement within the meaning ofsection 2(2) of the State Immunity Act 1978 , by its ratification of the New York Convention 1958 and thereby (on the fourth to sixth claimants’ case) its consent under article III to the English court recognising and enforcing the Awards.”
“Each contracting state shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.”
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . . . 3. There shall be taken into account, together with the context: (a) . . . (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.”
“occupies an important place in international law and international relations. It derives from the principle of sovereign equality of states, which, as article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.”
“Moreover, as the Court has stated … the law of immunity is essentially procedural in nature… It regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful.”
“The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State.”
“The proceedings which the applicant intended to pursue were for damages for personal injury, a cause of action well known to English law. The Court does not accept the Government’s submission that the applicant’s claim had no legal basis in domestic law since any substantive right which might have existed was extinguished by operation of the doctrine of State immunity. It notes that an action against a State is not barred in limine: if the defendant State waives immunity, the action will proceed to a hearing and judgment. The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts’ power to determine the right.”
“By ratifying the New York Convention and entering into the Treaty, which includes a dispute settlement clause referring the parties to arbitration, and by participating in such arbitration provisions without reserving its right to claim immunity India must be considered to have accepted that any resulting award would be subject to recognition and enforcement proceedings.”
“To put it even more simply: no arbitration agreement, no waiver.”
“The UN Enforcement Convention [i.e. the New York Convention] stipulates that, if certain conditions are met, arbitral awards must be permitted to be enforced in accordance with domestic procedural rules and that enforcement must not be subject to significantly stricter procedural rules or significantly higher costs than domestic arbitral awards (Article 3 of the UN Enforcement Convention). The reference to domestic procedural law includes, as part of federal law, the general rules of international law, which include the observance of diplomatic protective rights.”
“India is agreeing by the terms of the New York Convention that relevantly Australia will recognise and enforce arbitral awards which fall within the scope of the Convention. If India is a party to such an arbitral award, it is an obvious and necessary implication that India is requiring Australia to recognise and enforce that award. As Australia would be unable to do so if India were at liberty to oppose the recognition and enforcement of such an award on the ground of foreign State immunity, the terms of Art III are inconsistent with India being able to deploy such a defence.”
“Article III thus qualifies the obligation of contracting States to enforce arbitral awards by reference to whatever rules of foreign State immunity are adopted by the territory where the award is relied upon. That qualification is inconsistent with a waiver of foreign State immunity having occurred merely by ratification of the New York Convention, which would have left no role for the rules of foreign State immunity in the territory where the award is relied upon.”
“In my judgment the argument carries little force, and certainly cannot outweigh the reasons for interpreting article 54 as a submission to the jurisdiction for the purposes of section 2(2) of the SIA set out above, reasons which have found favour in numerous states which are also party to the New York Convention. As the Border claimants submitted, there is no requirement in the VCLT that, in interpreting one treaty, regard must be had to the effect of a potential read-across to a second treaty dealing with a different though related subject-matter. Further: (i) It is by no means clear that interpreting article 54 as a submission to the jurisdiction for the purposes of section 2(2) of the SIA would necessarily result in article III also being so interpreted. The two provisions are not worded identically, article III referring to the award being enforced “in accordance with the rules of procedure of the territory where the award is relied upon”
“An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority.”