ARBITRATION AWARDS AND SOVEREIGN IMMUNITY IN ENGLISH COURTS
Recent English case law has created two distinct tracks for the enforcement of investor-state awards, confirming that a state’s ratification of the International Centre for Settlement of Investment Disputes (ICSID) Convention amounts to a waiver of sovereign immunity, while ratification of the New York Convention does not.
This article examines why treatment of the two treaties has diverged by reference to the Supreme Court’s ruling in Infrastructure Services v. Spain and the Court of Appeal’s ruling in Devas (Mauritius) Limited v. India, and what it means for parties enforcing awards against states in the UK.
State immunity – the statutory framework
Section 1(1) of the State Immunity Act 1978 (SIA) provides that a foreign state is immune from the jurisdiction of the UK courts, subject only to certain exceptions. The burden of establishing an exception falls on the party bringing proceedings against the state.
Section 2(1) provides that a state is not immune in proceedings to which it has submitted to the jurisdiction of the UK courts and section 2(2) specifies that a state may submit after a dispute arises, or by a prior written agreement. A provision merely specifying that an agreement is governed by UK law does not, on its own, satisfy section 2(2).
Section 17(2) provides that for the purposes of section 2(2) references to an agreement include references to a treaty, meaning that, in principle, ratifying a multilateral treaty could constitute the “prior written agreement” to submit to jurisdiction. Whether a particular treaty does constitute prior written agreement to submit to the jurisdiction of the UK courts is a question of interpretation.
Oct-Dec 2026 issue
Jenner & Block LLP