Jurisdiction(s):
United Kingdom

ICSID award registration is a ministerial act: state immunity engaged only after service; SIA 1978 ss 2 and 9 arguments rejected; disclosure duties stressed—Border Timbers v Zimbabwe

Published on: 30 January 2024

Published by a LexisNexis Arbitration expert

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Article summary

Border Timbers Ltd and another v Republic of Zimbabwe [2024] EWHC 58 (Comm) What are the practical implications of this case?

This ruling highlights significant questions about enforcing ICSID awards and how the ICSID Convention interfaces with the SIA 1978. Zimbabwe has leave to appeal, meaning the Court of Appeal will soon address these matters. Those points will therefore receive appellate scrutiny in due course. If the judgment stands, sovereign immunity will be implicated only when, in proceedings to register an ICSID award, the state has been served with the without notice order. At that point, the state can seek to have the order discharged. The permissible bases are limited: the order must have gone beyond straightforward recognition and enforcement of the award, or there must have been a failure to provide full and frank disclosure. A challenge cannot be mounted on the footing that the state is otherwise entitled to assert sovereign immunity. It follows that immunity objections cannot be raised at the recognition stage as a freestanding bar...

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