Enforcement Strategies where the Opponent is a Sovereign

Enforcement proceedings against states are different

Enforcement proceedings against sovereigns present unique challenges that do not arise in enforcement proceedings against private entities. As an initial matter, states enjoy sovereign immunity such that sovereigns that decide not to pay have powerful weapons at their disposal to shield their assets from enforcement. The national laws implementing the principle of sovereign immunity vary around the world. In the United States, to take one important example, foreign sovereigns are immune from attachment and execution of their property in the United States, subject to certain limited exceptions.^[2] Unique rules for personal jurisdiction and service applicable to sovereigns can further complicate efforts to enforce.^[3]

Additionally, in the event of a sovereign’s insolvency or inability to pay an award, there are no rules and no centralised authority governing sovereign bankruptcy. Without a single forum for insuring equal treatment of similarly situated creditors, award creditors face the potential for unequal treatment.

Bureaucratic and political dynamics also make it particularly difficult for states to settle disputes before a final judgment has been rendered and all available challenges are exhausted. Indeed, the sovereign’s need to protect the public purse – along with potential difficulties in procuring funds for settlements – mean that arbitrations involving sovereigns tend to continue further into the arbitral process, including potential enforcement proceedings, compared with commercial disputes. Instead, officials unwilling to take responsibility for settling claims may prefer to litigate even if private litigants would consider such a course economically unreasonable. At the same time, political considerations may make governments reluctant to settle claims by unpopular foreign investors.

Similar political motivations may subsequently increase the difficulties of enforcement against a sovereign. By and large, states must pay their debts, including adverse arbitral awards, with taxpayer funds. Efforts to avoid or delay payment may be met with sympathy, or even support, by constituents and may at times be justified in nationalistic or ideological terms.

Finally, politics – both international and domestic – can increase the difficulties of enforcement against a sovereign. For example, in recent years, the dispute between the Juan Guaidó and Nicolás Maduro regimes in Venezuela has complicated and delayed certain post-award proceedings against the state as competing sets of counsel claimed to be acting on Venezuela’s behalf.^[4] The existence of economic sanctions against a state can also complicate enforcement efforts. Under US law, for example, award creditors must obtain a licence from the US Department of the Treasury Office of Foreign Assets Control before enforcing a judgment or arbitral award against property that is otherwise blocked by sanctions regulations.^[5] These requirements not only impose an additional procedural hurdle but can subject award creditors to political policy that may change over time or from one administration to the next.

Yet the truth is that, with patience and persistence, all states can be compelled to pay adverse awards. Importantly, unlike private entities or individuals, sovereigns can never disappear or discharge their debts in bankruptcy. Instead, the rules of state succession preserve the rights of a state’s creditors even through dramatic changes in their internal political order.^[6]

Moreover, even the most obstreperous government will eventually lose power, and its replacement may see benefits in settling adverse awards. A new government may consider payment of an award, or a portion of an award coupled with investment incentives, in line with its new agenda. Libya is one example where a changed regime resulted in a reversal of policy.^[7] Similarly, although Argentina initially declared itself to be immune from pressure to pay adverse awards rendered against it with regard to measures adopted during its economic crisis in 2001 and 2002, in October 2013, it settled five final awards rendered against Argentina at that time.^[8]

Our interconnected global economy has also increased a state’s incentives to pay adverse awards, since its access to capital markets can be disrupted by award creditors. Similarly, many states are motivated to pay adverse arbitral awards because failure to do so can give a state a reputation as an inhospitable environment for investment. Relatedly, a state may fear that failure to honour an ICSID award may negatively affect its relationship with the World Bank or other multilateral lenders. Although these may not be motivating factors immediately after an award is rendered or enforced, every state will eventually seek foreign direct investment. Payment of adverse awards may be the only option for a state to achieve its economic goals.

Recent developments in the finance industry – including the availability of third-party funding and a robust market for the sale of awards against sovereigns – have also made it easier for award creditors to show the requisite patience and persistence to collect.

Given the unique considerations involved in enforcement against a sovereign, practitioners and would-be litigants should be mindful of available strategies and best practices at key moments: at the time of the underlying investment or transaction, when a dispute arises and at the time of, or following, the issuance of an arbitral award. Effective employment of these strategies can help would-be litigants minimise risk and increase the likelihood of efficient and effective enforcement of a favourable arbitral award obtained against a sovereign.

Best practices for would-be litigants in disputes against sovereigns

At the time of investment

Beginning at the time of the initial investment, it is wise to consider taking steps that can facilitate enforcement of an arbitral award in the event that disputes arise. A key question in this context is whether the would-be litigant makes its investment pursuant to a contract with the sovereign.

Where there is a contract with the sovereign

Where there is a contract with the sovereign, a private party may attempt to negotiate contractual protections to facilitate enforcement of an award in the event that a dispute arises. First, the state may be required to post a letter of credit or performance bond against which the private party can draw in the event of a favourable award. Such a provision may be difficult to negotiate, but many states have acquiesced to these requirements – particularly those in need of foreign investment – where doing so was perceived as necessary to get the deal done.

Second, a party can seek an explicit waiver of sovereign immunity from the state in the arbitration agreement. Not all waivers are equally effective, however, and it is important for a party to ensure that the sovereign spells out precisely which immunities it is waiving. A waiver of immunity from the jurisdiction of the US courts, for example, does not necessarily constitute a waiver of immunity from attachment; a waiver of immunity from attachment, moreover, does not necessarily constitute a waiver of immunity from prejudgment attachment. Thus, a party should seek a broad waiver that covers all immunities that might be relevant in enforcing an award. Indeed, it has been said: ‘The only way to place a sovereign party on an equal footing with a private one is to ensure that there is a waiver of immunity from execution as well as immunity from jurisdiction, the latter implied by the arbitration clause itself.’^[9]

Finally, it is important to carefully consider the choice of arbitral seat for any potential dispute. In particular, agreeing to a local arbitral seat raises the risk that an award may be annulled based on local standards or non-transparently. Local courts may be particularly receptive to state’s objections to an adverse arbitral award for many of the reasons noted earlier (see ‘Enforcement proceedings against states are different’) and may be inclined to apply local laws or standards in a way that benefits the state. Annulment based on local standards can frustrate enforcement efforts in other jurisdictions, as the New York Convention provides courts with discretion to decline to enforce a foreign arbitral award if it has been set aside in its country of origin.^[10] Although courts regularly decline to enforce an international arbitration award set aside by the courts of the arbitral seat, in exceptional cases courts will decide to enforce an award, notwithstanding its annulment at the seat, to promote public policy in favour of enforcement, effectuate the purpose of the New York Convention and protect the claimant’s rights under the law of the country in which enforcement is sought.^[11] Even so, a party entering into an arbitration agreement with a sovereign is far better advised to negotiate a neutral arbitral seat so as to avoid the potential risk of local annulment and resulting complications in later efforts to enforce a favourable award.^[12]

Where no contract exists

Even if there is no contract with the sovereign, there are a number of measures and strategies that investors in a foreign jurisdiction should consider at the time of investment to aid in the enforcement of an eventual arbitral award arising out of an investor-state dispute.

As an initial matter, the investor should consider structuring the investment to ensure that there is adequate protection by an applicable bilateral investment treaty (BIT). This may include corporate restructuring, including the creation or use of corporate affiliates, or holding companies of a particular nationality, for the purposes of making an international investment. Tribunals have endorsed this type of corporate planning for the purpose of obtaining protection under BITs. For example, in Mobil Corporation v. Bolivarian Republic of Venezuela, the claimants restructured their investments in Venezuela through a Netherlands holding company to obtain the protections available under the Netherlands–Venezuela BIT. The tribunal concluded that the claimants’ corporate restructuring reflected a ‘perfectly legitimate goal as far as it concerned future disputes’.^[13] Any restructuring, however, must be done before the dispute arises or can reasonably be foreseen.^[14] Accordingly, would-be litigants should consider available treaty protections from the outset of the investment and should structure the transaction or investment activity accordingly.

An investor should also be mindful of any applicable foreign investment law and should ensure compliance with its strictures at the time of the investment. Taking the proper steps to ensure compliance at the time of the investment can help avoid or neutralise potential challenges as to the legality of the investment or availability of treaty protections, both during the pendency of the arbitration and in any post-award or enforcement proceedings. At the same time, foreign investment laws may provide a state’s advance consent to investor-state arbitration.^[15]

An investor may also consider purchasing political risk insurance to protect its assets or other forms of investment. This type of insurance is available from public or state-backed entities, such as the World Bank’s Multilateral Investment Guarantee Agency or the US’s Overseas Private Investment Corporation, as well as any number of private insurers.

Common political risk insurance products can provide coverage for losses arising from war, revolution, insurrection and political unrest. Expropriation coverage is also available and can protect against losses resulting from outright confiscation, expropriation or nationalisation, as well as creeping expropriation. Most insurance products, however, do not address the concept of fair and equitable treatment by the sovereign or otherwise insure against denial of similar protections that may be available under applicable treaties.

An investor may also consider purchasing sovereign default insurance, which protects against losses resulting from a government’s failure to make a payment when due or otherwise default under a financial payment obligation or guarantee. Sovereign default insurance can often be procured as a stand-alone insurance product but also can be included within the scope of coverage under some expropriation insurance policies.

At the time of the dispute

Once a dispute with a sovereign arises, potential litigants should integrate enforcement consideration into their strategy from an early stage.

First, a would-be litigant may wish to revisit the issue of available insurance products that may mitigate the risk of collection. For example, the claimant may consider obtaining sovereign award default insurance to provide coverage in the event that a sovereign defaults on an eventual award. Sovereign award default insurance is not always available or necessarily cost-effective. In some cases, litigants may be able to obtain insurance against a sovereign default up to a certain amount – thus protecting a minimum recovery and creating liquidity to fund further collection efforts. All this said, litigants who purchase such coverage should be mindful of hammer clauses that may be included in the policy, allowing the insurer to direct the claimant to settle the dispute at the insurer’s discretion, and limiting coverage if the claimant declines to do so.

Claimants should also consider engaging in preliminary due diligence on enforcement as soon as a dispute arises. This diligence should include research and identification of state-owned companies and state assets. Claimants should also be mindful of potential trust accounts held for the benefit of state-owned entities and available assets.^[16] Early identification of a sovereign’s assets can not only facilitate pre-award attachment, if available, but also allow a claimant to develop an effective post-award strategy.

A would-be litigant may also consider seeking third-party funding for the dispute. Importantly, the potential benefits of funding arrangements are not limited to indigent claimants. Rather, there are a variety of options and potential deal structures available that can allow would-be litigants to mitigate risk, manage cash flow and otherwise facilitate enforcement of their legal rights.

Even large corporations may consider the option of some form of third-party funding salutary:

• Many large corporations are unaccustomed to playing the role of claimant in litigation – alternative fee and funding arrangements can help ensure that all stakeholders are focused on ensuring that any value destroyed by the sovereign is recovered.
• Corporations from outside the United States may be unaccustomed to the significant legal spend that often accompanies litigation against a sovereign – alternative fee and funding arrangements help to relieve that cultural impediment to recovering the value destroyed by the sovereign.
• Disputes with sovereigns can be lengthy, and even large corporations may lack the patience to pursue significant claims against sovereigns to the end – alternative fee and funding arrangements can help to overcome litigation fatigue at crucial junctures.

At the time of the award

As noted above, even before a final award is issued, litigants should be thinking strategically about enforcement and collection. After a favourable award has been issued, the litigant – now an award creditor – should be ready to implement that strategy.

Issues in enforcement proceedings against a sovereign

When an award creditor has commenced enforcement proceedings, one of the first hurdles can be perfecting service on the sovereign. If a state is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (the Hague Convention), service can be completed pursuant to its methods, which apply to both private and sovereign litigants.^[17] Award creditors should take care to ensure that all the Hague Service Convention’s procedural requirements are satisfied to avoid delay or potential challenges by the state, often on highly formalistic grounds.

For example, some sovereigns may attempt to subvert service by failing to provide the requisite certificates provided for under the Hague Service Convention if a state’s central authority transmits service to a litigant located in its jurisdiction. As a federal court in the District of Columbia recently observed: ‘Venezuela has a documented history of playing a shell game: circumventing service by refusing to issue a certificate [as required under the Hague Service Convention].’^[18] Courts have repeatedly rejected Venezuela’s efforts to thwart proper service on itself,^[19] but award creditors should be mindful of and prepared to address such tactics.

Award creditors may also face efforts by a sovereign to delay enforcement pending annulment proceedings or other challenges to the award. Annulment procedures differ significantly for awards subject to the New York Convention compared with ICSID awards; in each case, however, award creditors may consider requesting that the state post a bond pending any challenge to the award or efforts to delay enforcement. For awards subject to the New York Convention, an award creditor may ask the court to require the state to post a bond if it seeks to vacate the award or opposes recognition and enforcement. The ICSID Convention, on the other hand, leaves this to the annulment committee. ICSID annulment committees have the inherent power to require that the state post a bond or otherwise provide a guarantee as a condition for stay of enforcement pending annulment proceedings.^[20] Requiring a bond or other guarantee can protect the award creditor against dissipation of assets and help to avoid further non-compliance following an unsuccessful challenge to the award.

Parties should also be sensitive to the potential effect of changes in government to the enforcement process. Changes in government may also mean changes in policy or economic or diplomatic priorities, which can create opportunities for negotiation and settlement. Officials may also be more willing to settle claims arising from their predecessors’ conduct than their own. Argentina’s abrupt settlement of a more than 10-year, US$1 billion dispute with hedge fund Elliott Management, founded by billionaire Paul Singer is a prime example of how changes in administration can change the course of enforcement proceedings.^[21] After years of highly contentious litigation – including attachment of an Argentinian navy ship and a public rebuke by the then president of Argentina calling the country’s creditors ‘vultures’ – a settlement agreement came only months after the election of President Mauricio Macri, who had promised to revitalise Argentina’s economy.^[22]

Issues regarding attachment of sovereign assets

Although voluntary payment or settlement is the ideal outcome, identification and attachment of state assets – and the possibility of execution against those assets – will often be a critical component of enforcing an arbitral award against a sovereign.

A threshold question for award creditors is what assets may be subject to attachment? The established exceptions to sovereign immunity are key in crafting an enforcement strategy. Perhaps most importantly for award creditors, immunity does not apply to sovereign assets that are commercial in nature.^[23] However, whether sovereign assets qualify as commercial assets subject to attachment and execution can vary substantially between jurisdictions and will depend on the specific facts of each case.

Award creditors will ideally be able to pursue assets owned directly by a state. In practice, however, many of a sovereign’s commercial assets are held through state-owned companies. As a general rule, state enterprises are presumed to be legal entities distinct from the state.^[24] In practice, of course, state companies operate with wildly varying degrees of independence. A state’s creditors, therefore, may be able to overcome the presumptive separateness of the state itself and the companies it owns, thus opening up the possibility of enforcement against assets of state-owned companies. Under US law, for example, an award creditor seeking to attach assets of a state-owned entity must prove that either (1) the ‘corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created’ (i.e., that the entity is the state’s alter ego), or (2) recognition of separate corporate status of the state-owned entity ‘would work fraud or injustice’ on the other party.^[25]

To prove that a state-owned entity is the alter ego of the state itself, the award creditor must have a viable theory to pierce the corporate veil, and must be armed with specific facts supporting its theory. Under US law, in determining whether the state-owned entity is subject to the state’s ‘extensive control’, courts will consider:

• the level of economic control by the government;
• whether the state-owned entity’s profits go to the state;
• the degree to which government officials manage the entity or are involved in day-to-day affairs;
• whether the state is the real beneficiary of the entity’s activities; and
• whether adherence to separate legal identities would entitle the state to benefits in the United States while avoiding its obligations.^[26]

Evidence of commingling of funds, lack of respect for corporate formalities, corruption (e.g., funds stolen from the state) and fraud may also be relevant to the analysis. Notably, courts have rejected arguments by the state that there must be a relationship between the state entity and the award creditor’s injury or the dispute at issue.^[27] Although proving that a state-owned entity is an alter ego can be complex, such a strategy can greatly increase the number of assets available to satisfy an arbitral award against the sovereign.

Another strategic issue regarding post-award attachment is timing. Award creditors may wish to begin attachment proceedings as soon as possible after obtaining a favourable award, particularly where there may be concerns about disappearing assets or when a state faces a number of creditors. Even after obtaining a favourable award, however, award creditors and practitioners should be mindful of additional procedural hurdles depending on the timing of attachment efforts. In the United States, for example, an award creditor will face different sovereign immunity rules depending on whether it commences attachment proceedings before or after the arbitration award has been enforced as a judgment by a court with jurisdiction over the award. Specifically, for post-enforcement judicial proceedings, the US Foreign Sovereign Immunities Act (FSIA) allows for attachment of property of a foreign state without requiring the award creditor to prove that the state has explicitly waived sovereign immunity from attachment.^[28] If an award creditor seeks attachment before enforcement of the award, however, the FSIA effectively treats the proceedings as one for prejudgment attachment, notwithstanding the fact that an award has been issued. Accordingly, award creditors who seek attachment prior to reducing their award to a judgment face the difficult task of demonstrating that the sovereign has explicitly waived its immunity from prejudgment attachment.

Although this statutory distinction makes little practical sense, award creditors seeking to attach sovereign assets in the United States should nevertheless take it into account in planning their enforcement strategy. Award creditors who wish to proceed with attachment prior to award recognition should be prepared to establish explicit waiver from prejudgment enforcement, either by contractual waivers, discussed above, or by the state’s conduct in post-award proceedings. Alternatively, an award creditor may consider first seeking recognition of the award in a foreign court and then seeking to enforce that foreign recognition of the award in US enforcement proceedings. In such a case, the award creditor may bring the recognised arbitral award to a court to have it enforced as a foreign judgment. This process would avoid the sovereign immunity issue that would arise when seeking to enforce a pre-recognition award, since in the case of a foreign final judgment, sovereign immunity is considered implicitly waived.^[29] A trade-off is involved in such a strategy, however, since foreign court judgments are ultimately enforced as a matter of comity, such that courts have more discretion with respect to a foreign judgment than an arbitration award subject to the streamlined enforcement regimes of the New York or ICSID Conventions.

Other strategic considerations concerning post-award enforcement proceedings

Successful claimants may also consider selling an award against a sovereign to independent investors. Recent developments in litigation finance have created a robust market for the sale of arbitral awards or other arrangements to finance enforcement. Importantly, the ‘sale’ of an award does not necessarily mean that the investor purchases complete entitlement to the award proceeds; instead, investors more frequently purchase partial rights, such as to a set share of any subsequent recovery in exchange for an advance of funds. Selling an arbitral award may be particularly appealing for claimants who have endured long or expensive arbitration proceedings, or face arduous enforcement proceedings and wish to monetise the award immediately, either because of litigation fatigue or broader business and financial considerations. Many sophisticated financial investors view awards against sovereigns as similar to sovereign debt instruments – albeit less liquid, on the one hand, but more enforceable on the other (owing to the New York and ICSID Conventions).

If other measures fail, political pressure can also provide leverage to encourage a sovereign to pay adverse awards. For example, following Argentina’s sustained failure to pay approximately US$300 million in arbitral awards obtained by two US investors, the US government took action (starting in 2011) to put pressure on Argentina to comply with its inter­national obligations. First, the United States voted against proposed loans of US$232 million for Argentina at the Inter-American Development Bank.^[30] Then, in 2012, the US government suspended Argentina’s eligibility for trade benefits under the US Generalized System of Preferences, which had allowed Argentina to export numerous products into the United States duty-free.^[31] This measure exposed Argentina to more than US$470 million in new tariffs.^[32] Argentina ultimately settled the awards approximately one year later, following US litigation.

Some parties seeking to enforce arbitral awards have found success collecting against corrupt funds identified in foreign jurisdictions. Money stolen from a sovereign by government ministers in the context of bribery or a money laundering scheme is actually the property of the sovereign for whom the ministers work. The state is the victim even if its officers are the criminals. An award creditor who uncovers corrupt funds in a foreign jurisdiction arguably has a right to collect against those funds, assuming it can prove that they are commercial in nature since they are state property.

Conclusion

Enforcement against a sovereign presents unique challenges, with different rules, jurisdictional requirements and practical considerations informing the sovereign’s litigation strategies and incentives (or disincentives) to pay adverse awards. Award creditors, conversely, have a variety of tools at their disposal to facilitate collection and should be mindful of available strategies at all stages of the dispute.

Notes