Enforcement Against A Sovereign State: A Relaxation Of The Rules Of Service

Sovereign States have, for a long time, enjoyed a degree of protection from the English courts under the State Immunity Act 1978. For example, absent a pre-agreed method of service such as on a service agent in England, proceedings against a State have to be served through the Foreign and Commonwealth Office, which is time-consuming. In a helpful judgment on 3 July 2019, which will be welcomed by those pursuing claims in England against States, the English Court of Appeal decided that litigants will not always have to follow the formal rules of service in seeking to enforce judgments against States.

The Facts

In General Dynamics United Kingdom Limited v The State of Libya,1 the claimant, a UK company, obtained an award from an ICC arbitral tribunal against the State of Libya for around GBP 16 million. The claimant sought to enforce the award through the English courts as it believed that Libya had or may have had assets in England and Wales.

The claimant made an application to enforce the award through an arbitration claim form (the Arbitration Claim Form). Teare J granted the claimant permission to enforce the award in England and Wales and, given the serious internal conflict in Libya, permitted the claimant to dispense with formal service of the Arbitration Claim Form, along with any orders made by the English court and associated documents (the Order). Notice of the documents still had to be given to Libya by sending them to three addresses, one of which was to the Libyan Ministry of Foreign Affairs, and Libya was given two months within which to apply to set the Order aside.

The Order did come to the attention of Libya which applied, amongst other things, to have the Order set aside insofar as it sought to dispense with the ordinary rules on service. The judge hearing Libya's application found that the English court had no jurisdiction to dispense with service against a State. His view was that service of the Order had to be made through the Foreign and Commonwealth Office (the FCO) in accordance with section 12 of the State Immunity Act 1978 (the SIA), as it was a "document required to be served for instituting proceedings against a State."

The claimant then appealed that decision to the Court of Appeal, arguing, amongst other things, that neither the Order nor the Arbitration Claim Form were documents to which section 12 of the SIA applied.

The Decision of the Court Of Appeal

The Court of Appeal allowed the appeal in part, holding...