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Waiver of State Immunity and Enforcement of Arbitral Awards

  • Ben JURATOWITCH (a1)
Abstract

If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.

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Co-Head of the Public International Law Group and Partner in the International Arbitration Group of Freshfields Bruckhaus Deringer, Lecturer at the University of Paris V, and Visiting Fellow at the London School of Economics. Gratitude for their helpful comments on earlier drafts is due to James Crawford, Kate Parlett, Jan Paulsson, Philippa Webb, and two anonymous referees who reviewed this paper for the Asian Journal of International Law.

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Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
  • URL: /core/journals/asian-journal-of-international-law
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