“(1) A New York Convention award shall be recognised as binding on the persons as between whom it was made, and may accordingly be relied on by those persons by way of defence, set-off or otherwise in any legal proceedings in England and Wales or Northern Ireland. (2) A New York Convention award may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. […] (3) Where leave is so given, judgment may be entered in terms of the award.”
“(1) An application for permission under - […] (b) section 101 of the 1996 Act; […] to enforce an award in the same manner as a judgment or order may be made without notice in an arbitration claim form. (2) The court may specify parties to the arbitration on whom the arbitration claim form must be served. (3) The parties on whom the arbitration claim form is served must acknowledge service and the enforcement proceedings will continue as if they were an arbitration claim under section 1 of this Part. […] (7) An order giving permission must - (a) be drawn up by the claimant; and (b) be served on the defendant by - (i) delivering a copy to him personally; or (ii) sending a copy to him at his usual or last known place of residence or business. (8) An order giving permission may be served out of the jurisdiction - (a) without permission; and (b) in accordance with rules 6.40 to 6.46 as if the order were an arbitration claim form. (9) Within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set - (a) the defendant may apply to set aside the order; and (b) the award must not be enforced until after - (i) the end of that period; or (ii) any application made by the defendant within that period has been finally disposed of. (10) The order must contain a statement of - (a) the right to make an application to set the order aside; and (b) the restrictions on enforcement under rule 62.18(9)(b).” […] (b) section 101 of the 1996 Act; […] (a) be drawn up by the claimant; and (b) be served on the defendant by - (i) delivering a copy to him personally; or (ii) sending a copy to him at his usual or last known place of residence or business. (a) without permission; and (b) in accordance with rules 6.40 to 6.46 as if the order were an arbitration claim form. (a) the defendant may apply to set aside the order; and (b) the award must not be enforced until after - (i) the end of that period; or (ii) any application made by the defendant within that period has been finally disposed of.
“Section 12 (Service of process and judgments in default of appearance) (1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid. (3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings. (4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired. (5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry. (6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner. (7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction. Section 13 (Other procedural privileges) (2) Subject to subsections (3) and (4) below - […] (b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale. […] (4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; but, in a case not falling within section 10 above, this subsection applies to property of a State party to the European Convention on State Immunity only if - (a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration underarticle 24 of the Convention ; or (b) the process is for enforcing an arbitration award. Section 21 (Evidence by certificate) A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question - […] (d) whether, and if so when, a document has been served or received as mentioned in section 12(1) or (5) above.”
“It is true that the Chief Land Registrar by his order was not insisting on an originating summons and that any other appropriate originating process could have been used … But whatever originating process was chosen, it must have been envisaged that the city council would be instituting proceedings as plaintiff and the only other known interested party, the Iranian government, would be defendant, and that by analogy with rule 300 of theLand Registration Rules 1925 the Iranian government would be served with the proceedings, so that it could participate in the hearing before the court. It seems to me, therefore, that the wording of the opening words ofsection 12(1) of the State Immunity Act 1978 is satisfied in the present case.”
“9.7 … It would have been possible to provide for service within the jurisdiction on the Embassy, on the analogy of a foreign company carrying on business within the jurisdiction … However, it was no doubt considered more diplomatic that the foreign sovereign should not, by reason merely of his mission’s presence here for the purpose of diplomatic intercourse between the two countries, be deemed to have a legal presence within the jurisdiction.”
“The text of draft article 20(1) remained unchanged until 2004, when it was substantially amended by the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property. The Ad Hoc Committee re-introduced reference to any special arrangement between the claimant and the State concerned, to the extent that it was not precluded by the law of the forum state, and posited it as a preferred method of service alongside any applicable international convention. If and only if no international convention applied and no special arrangement had been made, service of process was to be effected by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned or by any other means accepted by the State concerned, if not precluded by the law of the forum state. It was in this form that what had by then become article 22(1) passed into the Convention as adopted by the General Assembly later that same year.”
“The court considers that the rule of state immunity 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. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.”
“Because it is the only method of service which can be said with some certainty to be workable without the prior agreement of the foreign state, any proposal for reform must make provision for it. It is guaranteed to bring the suit to the attention of senior officials of the foreign state, fulfilling the criterion that service must give the State adequate notice. Equally importantly the diplomatic channel is least likely to cause offence to recipients. When offended by the use of other methods of service, States frequently point out that the diplomatic channel should have been used. It is routinely used by a number of civil law states. The Commission has been informed that the United Kingdom experience with service through the diplomatic channel under the 1978 Act, which has been reasonably extensive, has not presented significant difficulties in practice.”
“No doubt there is a basis for an implication of a requirement in the Immunities Act that a foreign state be served in order that it can effectively assert its claim to immunity. Even so, it cannot be said that the procedures under the Foreign Judgments Act deny a foreign state such as Nauru that opportunity. The foreign judgment may have been registered, but that registration was liable to be set aside on the application of Nauru and upon Nauru’s assertion of its immunity.”
“The same rationale applies to a leave order, since the originating summons itself is not served. Even though it is not an originating process, the leave order will often be the first hint that the respondent state has of the impending enforcement proceedings in Singapore, particularly if the award is a foreign one … The important distinction in section 14 is not between originating processes and non-originating processes as a matter of form, but between the ‘institution’ of new proceedings (of which the State is unaware) and the continuation of ongoing proceedings (of which the State already has notice). In the former case, the State must be notified through the official channel stipulated in section 14. After it has notice of the proceedings, the procedure for service of other documents need not strictly comply with section 14 any longer. It is crucial to remember that the trigger under section 14(1) for the institution of proceedings is the requirement of service and not the character of the document that has to be served.”
“84. … the evidence established that much of Libya was in a state of civil unrest and was violent and unstable, with armed militia groups active in the capital endangering civilian lives and safety, an atmosphere of persistent lawlessness and a real risk of a full-scale civil war. The British Embassy had closed, with diplomats moving to neighbouring Tunisia, although visits to Libya were sometimes possible and some diplomatic staff remained in the country. There was at least uncertainty as to the time which would be required to effect service through the Foreign and Commonwealth Office, assuming this was possible at all. There were some periods when it would have been dangerous to attempt to deliver documents to the Ministry of Foreign Affairs as a result, not only of the situation in Tripoli generally, but also the presence of armed militia around the Ministry itself.”
“(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry. (2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid. (3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings. (4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired. (5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry. (6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner. (7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction.”
“requires that service should be effected diplomatically in both senses of the word. That ensures appropriately respectful dealings between sovereign states and gives to the executive which is responsible for the conduct of this country’s international relations a legitimate role in deciding whether, when and how a foreign state should be made subject to the jurisdiction of the English courts.” (Emphasis added)
“(1) In construing an enactment the court should aim to give effect to the legislative purpose. (2) A purposive construction of an enactment is a construction that interprets the enactment’s language, so far as possible, in a way which best gives effect to the enactment’s purpose. (3) A purposive construction may accord with a grammatical construction, or may require a strained construction.”
“It is a principle of legal policy that the domestic law should be interpreted in a way that is compatible with public international law. This principle forms part of the context against which legislation is enacted and, when interpreting legislation, a court should take it into account.”
“When considering whether an enactment applies to a new state of affairs, the court will pay particular attention to the wording of the enactment, its purpose, and whether the new state of affairs is of a similar nature to that in respect of which the enactment was passed.”
“If the question is asked ‘is it reasonable to suppose that the legislature intended a court applying the law in the future to ignore such changes and to act as if the world had remained static since the legislation was enacted?’ the answer must generally be ‘no’. A ‘historical’ approach of that kind would usually be perverse and would defeat the purpose of the legislation.”
“bankers’ books” insection 9 of the Bankers’ Books Evidence Act 1879 (42 & 43 Vict c 11) was held to include microfilm. In Nationwide Access Ltd v Customs and Excise Comrs[2000] All ER (D) 172 Dyson J held that a lorry-mounted hydraulic boom was a “mobile crane” for the purposes of section 27 of and Schedule 1 paragraph 9 to theHydrocarbon Oil Duties Act 1979 . In doing so he stated that “The nature of an ongoing Act requires the court to take account of changes in technology, and treat statutory language as modified accordingly when this is needed to implement the legislative intention”
“the widespread and increasing practice on the part of governments of engaging in commercial activities, makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts.” (Emphasis added)
“To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of States on the point in question, which is accepted by them on the footing that it is a legal obligation …”
“There has never been any clearly defined rule about what degree of consensus is required. The editors of Brownlie’s Principles of Public International Law, 8th ed (2012), p 24, suggest that ‘Complete uniformity of practice is not required, but substantial uniformity is’. This accords with all the authorities.”
“What is clear is that substantial differences of practice and opinion within the international community upon a given principle are not consistent with that principle being law: see Fisheries case (United Kingdom v Norway) [1951] ICJ Rep 116, 131.”
“32. In view of the emphasis placed by the European Court of Human Rights on the United Nations Convention and its antecedent drafts, it is right to point out that a treaty may have no effect qua treaty but nevertheless represent customary international law and as such bind non-party states. The International Law Commission’s Draft Conclusions on Identification of Customary International Law (2016) proposes as conclusion 11(1): ‘A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallisation of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or (c) has given rise to a general practice that is accepted as law (opinio juris) thus generating a new rule of customary international law.’ It would be difficult to say that a treaty such as the United Nations Convention which has never entered into force had led to the ‘crystallisation’ of a rule of customary international law that had started to emerge before it was concluded. For the same reason, it is unlikely that such a treaty could have ‘given rise to a general practice that is accepted as law’. These difficulties are greatly increased in the case of the United Nations Convention by the consideration that in the 13 years which have passed since it was adopted and opened for signature it has received so few accessions. The real significance of the Convention is as a codification of customary international law. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia[2007] 1 AC 270 , para 26 Lord Bingham described it as ‘the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases’. However, it is not to be assumed that every part of the Convention restates customary international law. As its Preamble recites, it was expected to ‘contribute to the codification and development of international law and the harmonisation of practice in this area’. Like most multilateral conventions, its provisions are based partly on existing customary rules of general acceptance and partly on the resolution of points on which practice and opinion had previously been diverse. It is therefore necessary to distinguish between those provisions of the Convention which were essentially declaratory and those which were legislative in the sense that they sought to resolve differences rather than to recognise existing consensus. That exercise would inevitably require one to ascertain how customary law stood before the treaty.” (Emphasis added)
“A … right of every [man] is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man’s life, liberty and property, courts of justice must at all times be open to the subject and the law be duly administered therein.”
“(1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration. (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States.”
“The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory.” (Emphasis added)
“No amount of purposive interpretation can however entitle the court to disregard the plain and unambiguous terms of the legislation. The consequence of the failure to obtain authority for continued segregation prior to the expiry of the 72-hour period is ineluctably spelled out by the legislation itself: the prisoner ‘shall not be subject to … removal for a period in excess of 72 hours from the time of the order’. That consequence cannot be avoided by relying, as the courts below sought to do, on such authorities as R v Soneji[2006] 1 AC 340 . Those authorities were concerned with situations where the legislation was silent as to the consequences of failure to comply with a time limit, and where the intended consequences therefore had to be inferred from the underlying purpose of the legislation.”
“If a member of the executive was to say formally to a court that the judicial determination of an issue raised in certain legal proceedings could embarrass the Government’s relations with another state, I do not consider that the court could be bound to refuse to determine that issue. That would involve the executive dictating to the judiciary, which would be quite unacceptable at least in the absence of clear legislative sanction. However, there is a more powerful argument for saying that such a statement should be a factor which the court should be entitled to take into account when deciding whether to refuse to determine an issue. Some indirect support for such an argument is to be found in In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (Nos 1 and 2)[1978] AC 547 , 616-617 and 639-640, and in Adams v Adams (Attorney General intervening)[1971] P 188 , 198. Again, it is a point which does not have to be decided in this case, and was not argued. In fairness to the defendants, there was some evidence to support such an argument, but it was answered in some detail, and in any event it was, rightly in my view, not pressed on their behalf in relation to the application of the Doctrine in these two cases.” (Emphasis added)
“[Section 12(1)] only applies to writs or other documents ‘required to be served’. If the document instituting the proceedings is not required to be served then the subsection has no application.”
“the rules in this respect are facultative. They enable appropriate orders for service to be made according to the facts and circumstances of each case, rather than imposing an inevitable and ineluctable service requirement regardless of the facts and circumstances of the case.”
“The position in the UK, as shown by the authorities, is that an order granting permission to enforce an arbitral award (‘a permission order’) must comply with the procedure in section 12 of the UK Act. The appellants accepted, correctly in my view, that the position in the UK was correct based on the statutory and procedural framework there.”
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