Challenging and Enforcing Arbitration Awards: United Kingdom - England & Wales

1. Must an award take any particular form?

United Kingdom

The parties are free to agree on the form of an award. Absent such an agreement, sections 52(3) to 52(5) of the UK Arbitration Act 1996 (the Act) state that an award must be in writing signed by all arbitrators or all those assenting to the award. The award should contain reasons, unless the parties have agreed to dispense with reasons or it is an agreed award. The award should also state the date on which the award was made and the seat of the arbitration. Unless an alternative process is agreed by the parties, the award should be notified to the parties by service on them of copies of the award without delay after the award is made (Act, section 55).

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

United Kingdom

The parties are free to agree on the powers of the tribunal to correct an award or make an additional award (Act, section 57(1)). Unless agreed otherwise, the tribunal has the power (on its own initiative or on an application by one of the parties to the arbitration) to correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission, or to clarify or remove any ambiguity in the award (Act, section 57(3)(a)). The tribunal is also empowered to make an additional award in respect of any claim (including a claim for interest or costs) that was presented by the parties but not addressed in the award (Act, section 57(3)(b)). In all cases, the tribunal must first afford the other parties a reasonable opportunity to make further representations (Act, section 57(3)(b)).

An application to the tribunal for correction or clarification of the award or for an additional award must be made within 28 days of the date of the original award (Act, section 57(4)). Any correction of an award must be made within 28 days of the date the application was received by the tribunal or within 28 days of the award if the correction is made by the tribunal on its own initiative (Act, section 57(5)). Additional awards must be issued within 56 days of the award (Act, section 57(6)). These time limits can be extended by agreement of the parties. A party must exhaust any recourse available from the tribunal to correct the award or issue an additional award under section 57 of the Act before seeking to appeal or challenge the award before the courts (Act, section 70(2)).

If a party later discovers that an arbitral award has been obtained by fraud or procured in a way that is contrary to public policy, the award may be challenged before the courts on the grounds of serious irregularity (Act, section 68(2)(g)).

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

United Kingdom

An award may be challenged before the English courts on the grounds of lack of substantive jurisdiction (Act, section 67) or serious irregularity (Act, section 68). These provisions are mandatory and cannot be excluded by agreement of the parties (Act, section 4(1)).

An award may also be appealed to the courts on a question of English law under section 69 of the Act, unless the parties have excluded this right of appeal (eg, through selection of institutional rules such as the London Court of International Arbitration Rules or the International Chamber of Commerce Rules containing a waiver of appeal rights).

Lack of substantive jurisdiction

A challenge to an award under section 67 of the Act can be pursued after the tribunal has issued its jurisdictional award or otherwise following issuance of the tribunal’s final award. ‘Substantive jurisdiction’ is defined in the Act by reference to whether (1) there is a valid arbitration agreement, (2) the tribunal is properly constituted, and (3) the matters submitted to arbitration are in accordance with the arbitration agreement (Act, sections 82(1) and 30(1)). An in-time application under section 67 involves a full rehearing (see Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, per Lord Mance SCJ at paragraph 26). The court has the power to confirm, vary or set aside the award in whole or in part (Act, section 67(3)).

In Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, the Supreme Court held that if the parties have not specifically agreed on a governing law for their arbitration agreement, the following principles will apply: (1) when the arbitration agreement is contained in a wider contract and the parties have chosen a governing law for the wider contract, the arbitration agreement will generally be governed by the same law; and (2) if not, the arbitration agreement will be governed by the system of law with which it is most closely connected, which will usually be the law of the seat of the arbitration.

A party may lose its right to challenge an award before the English courts for lack of substantive jurisdiction if the jurisdictional objection has not been raised before the tribunal in accordance with the time frames provided in section 31 of the Act, unless the challenging party can show that at the time it took part in the arbitral proceedings, it did not know, and could not with reasonable diligence have discovered, the grounds for the jurisdictional objection (Act, section 73(1)).

Serious irregularity

An award can also be challenged before the courts for serious irregularity affecting the tribunal, the proceedings or the award under section 68 of the Act. As defined in section 68, ‘serious irregularity’ means one or more of the following types of irregularity (this is an exhaustive list) that has caused ‘substantial injustice’ to the applicant:

• failure by the tribunal to comply with the general duties set out in section 33 of the Act, which are:
• to act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting its case and dealing with that of its opponent (see P (a company incorporated in Country A) v D (a company incorporated in Country B) and others [2019] EWHC 1277 (Comm), in which the court set aside an award owing to a core issue of credibility, on which the tribunal based its decision, not being put to a witness in cross-examination); and
• to adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined;
• the tribunal exceeding its powers (other than by exceeding its substantive jurisdiction);
• failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties or to deal with all the issues that were put to it;
• the relevant arbitral institution exceeding its powers;
• uncertainty or ambiguity as to the effect of the award;
• the award being obtained by fraud or the way in which it was procured being contrary to public policy;
• failure to comply with requirements as to the form of the award; and
• any irregularity in the conduct of the proceedings, or in the award, that is admitted by the tribunal or relevant arbitral institution.

If a serious irregularity is made out, then the court has the power to remit all or part of the award to the tribunal for reconsideration, or to set aside the award or to declare the award to be of no effect, in whole or in part (Act, section 68(3)). The court must not exercise its power to set aside or declare an award to be of no effect unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration (Act, section 68(3)).

If the award is remitted to the tribunal, the tribunal must issue a fresh award in respect of the relevant matters within three months of the court’s order or within any alternative time frame ordered by the court (Act, section 71(3)). As with section 67, the right to challenge an award based on serious irregularity may be lost if the objection has not been raised in a timely manner with the tribunal (Act, section 73(1)).

Appeal on a question of law

Section 69 of the Act provides parties with a right of appeal to the English courts on a question of law arising out of the award, unless the parties have agreed to exclude this right. Absent the agreement of all parties, an appeal on a question of law can only be made with the permission of the court. Leave to appeal will only be granted if:

• the determination of the question of law will substantially affect the rights of one or more of the parties and is one that the tribunal was asked to determine;
• on the basis of the findings of fact in the award, the decision of the tribunal on the relevant question of law:
• is obviously wrong; or
• concerns a question of general public importance and is at least open to serious doubt; and
• it is just and proper in all the circumstances for the court to determine the question, notwithstanding the parties’ agreement to arbitrate the dispute (Act, section 69(3)).

On an appeal under section 69, the court has the power to confirm, vary, set aside or remit the award to the tribunal for reconsideration, in whole or in part (Act, section 69(7)). The court must not exercise its power to set aside the award unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration (Act, section 69(7)).

A party should exhaust any available recourse or appeal rights before the tribunal before pursuing a challenge or appeal before the courts (Act, section 70(2)).

4. Is there a time limit for applying for the setting aside of an arbitral award?

United Kingdom

Any challenge to an arbitral award must be filed within 28 days of the date of the award or within 28 days of the parties being notified of the outcome of any arbitral appeal, review or correction to the award or an additional award (Act, section 70(3)). These time limits may be extended by the court (Civil Procedure Rules (CPR), Rule 62.9(1)). However, any challenge should be pursued without delay and the court will require ‘cogent reasons’ for an extension of time (The Commercial Court Guide, O9.2).

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

United Kingdom

Only awards can be set aside by the English courts. An award is final and binding on the parties and on any persons claiming through or under them (see Act, section 58(1)), as compared with procedural orders or other rulings by a tribunal, which are not capable of being challenged under the Act.

In determining whether or not a decision is an award for the purposes of a challenge under section 68 of the Act (serious irregularity), the courts have considered a number of factors including:

• the substance (not the form) of the decision;
• the nature of the issues with which the decision deals, eg decisions on the substantive rights and obligations of the parties are likely to be dealt with in the form of an award;
• whether the decision is final in the sense that it disposes of the matters submitted to arbitration so as to render the tribunal functus officio, either entirely or in relation to that issue or claim;
• the tribunal’s description of the decision, which is relevant but not determinative; and
• how a ‘reasonable recipient’ would consider the ‘objective attributes of the decision’ (eg, the tribunal’s description of the decision, formality of the language used, and level of detail with which the tribunal has expressed its reasoning) including whether they would view the decision as satisfying the formal requirements for an award under the applicable law and relevant arbitration rules (ZCCM Investments Holdings Plc v Kansanshi Holdings Plc & another [2019] EWHC 1285 (Comm), per Cockerill J at paragraph 40; see also The Republic of Uganda v Rift Valley Railways (Uganda) Ltd & others [2021] EWHC 970 (Comm), per Butcher J at paragraphs 46 to 47).

See, for example, ZCCM Investments Holdings Plc v Kansanshi Holdings Plc & another [2019] EWHC 1285 (Comm), in which the court held that a decision to refuse permission to pursue a derivative claim did not constitute an award capable of challenge under section 68 of the Act.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

United Kingdom

A party should apply to set aside an arbitral award in the courts of the seat of the arbitration.

When the seat of the arbitration is in England and Wales, an application to set aside an arbitral award should be issued in the Admiralty and Commercial Registry, Technology and Construction Court Registry or relevant District Registry of the High Court (see CPR, Practice Direction 62 (PD62(2.3)).

7. What documentation is required when applying for the setting aside of an arbitral award?

United Kingdom

To commence a challenge or appeal against an award, an applicant must file an arbitration claim form (Form N8) complying with the requirements of Rule 62.4 of the CPR, together with any supporting evidence and the relevant court fee. The claim form should then be issued using the standard CPR Part 8 procedure.

The arbitration claim form must:

• include a concise statement of the remedy claimed and any questions on which the claimant seeks the decision of the court;
• provide details of the award challenged by the claimant, identifying which part, or parts, of the award are challenged and specifying the grounds for the challenge;
• specify the section of the Act under which the claim is made and how any statutory requirements have been met;
• specify the defendants against whom a costs order is sought (if any); and
• specify the persons on whom the arbitration claim form is to be served.

Additional rules apply if permission is sought from the court to appeal against an award on a question of law under section 69 of the Act (see PD62(12.1 to 12.15)). In particular, the claim form should be accompanied by a skeleton argument and should append the award. Only limited written evidence is permitted for an application under section 69 (see PD62(12.4)), and ordinarily no arbitration documents may be put before the court other than the award and any documents referred to in the award that the court will need to review to determine the question of law arising out of the award (eg, the relevant parts of the underlying contract; see PD62(12.5)).

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

United Kingdom

The general translation requirements set out in the CPR will apply. For example, if a witness statement or affidavit is in a foreign language, the party must file the foreign language original and a certified translation with the court (PD22A(8.2)). Documents in a foreign language that are included in the bundle for the hearing should be accompanied by translations. The translation should be agreed between the parties; if it cannot be agreed, each party’s proposed translation should be included (The Commercial Court Guide, Appendix 7, paragraph 8(vii)).

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

United Kingdom

An application under section 67, 68 or 69 of the Act should be made on notice to the other parties and the tribunal.

In all cases, the claim form and supporting documents for commencing an application must comply with the formalities set out in the CPR. For example, CPR Rule 32 (Evidence) sets out detailed rules for witness statements. Specific rules apply when a party seeks permission to appeal an award on a point of law under section 69 of the Act (see PD62(12.1 to 12.6)). For example, the skeleton argument supporting the application should not generally exceed 15 pages in length (PD62(12.3)).

10. What are the different steps of the proceedings?

United Kingdom

A challenge to an award must be commenced by issuance of the arbitration claim form in accordance with the Part 8 procedure (CPR, Rule 62.3) in the High Court or the County Court. The application should be made on notice to the defendant, or defendants, and the tribunal.

Unless the court orders otherwise, an arbitration claim form must be served on the defendant within one month of the date of issue of the claim form (CPR, Rule 62.4(2)). Once the arbitration claim form is served by the claimant, the claimant must file a certificate of service within seven days of service of the arbitration claim form (PD62(3.2)).

Unless the court orders otherwise, the defendant has 21 days after the date by which it was required to acknowledge service to file and serve its written evidence in response to the set-aside application (PD62(6.2)). The claimant may then file and serve reply evidence within seven days of service of the defendant’s evidence (PD62(6.3)). The court will then progress the claim under the Part 8 procedure, including scheduling a hearing to determine the application (CPR, Rule 62.10).

The court’s usual case management powers will apply, including the power to make an order for summary judgment (CPR, Rule 3.1).

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

United Kingdom

The English courts have the discretion to adjourn enforcement proceedings pending the conclusion of set-aside proceedings at the seat of the arbitration. If permission to enforce the award has already been granted, the court has the power to order a stay of execution of enforcement.

12. What are the grounds on which an arbitral award may be set aside?

United Kingdom

An arbitration award may be challenged and set aside on the following grounds:

• the tribunal lacked substantive jurisdiction (Act, section 67); or
• there has been a serious irregularity affecting either the tribunal, the proceedings or the award (Act, section 68).

An arbitral award can also be appealed to the court on a question of law arising out of the award unless the parties have excluded that right by agreement (Act, section 69). On an appeal under section 69, the court has the power to set aside the award.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

United Kingdom

The effect of the decision will depend on the grounds of challenge and the terms of the court’s order.

If an application to challenge an award for lack of substantive jurisdiction succeeds, the court has the power to confirm, vary or set aside the award in whole or in part (Act, section 67(3)).

If a challenge succeeds on the grounds of serious irregularity, the court has the power to remit all or part of the award to the tribunal for reconsideration, or to set aside the award, or to declare the award to be of no effect, in whole or in part (Act, section 68(3)).

If an award is successfully appealed on a point of law, the court may confirm or vary the award, remit the award to the tribunal, or set aside the award in whole or in part (Act, section 69(7)).

The court’s decision may be appealed with the leave of the court (Act, sections 67(4), 68(4) and 69(8)).

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

United Kingdom

The courts may refuse to recognise or enforce a New York Convention award if the award has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made (Act, section 103(2)(f)). If an application to set aside or suspend an award has been made to the courts of the seat and is pending, the court may adjourn its decision on the recognition or enforcement of the award (Act, section 103(5)), in particular where there is a risk of issue estoppel (Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48, per Lord Hamblen SCJ and Lord Leggatt SCJ at paragraph 87).

The courts have recognised that an issue estoppel may arise from court proceedings for enforcement or challenge to an award in a foreign jurisdiction when:

• a judgment has been given by a foreign court of competent jurisdiction;
• the judgment was final and conclusive on the merits;
• there is identity of parties; and
• the issue decided by the foreign court is the same as that arising in the English court proceedings (see Good Challenger Navegante S.A. v Metalexportimport S.A. [2003] EWCA Civ 1668, per Clarke LJ at paragraph 50).

Thus, the court may find an issue estoppel or abuse of process if a party seeks to raise substantially the same complaint as to the procedural fairness or irregularity of the arbitration in enforcement proceedings before the English courts as it has already raised unsuccessfully before the courts of the seat of the arbitration, unless it ‘can be plainly perceived that it would cause injustice’ to the relevant party in the circumstances (see, for example, Carpatsky Petroleum Corporation v PJSC Ukrnafta [2020] EWHC 769 (Comm), per Butcher J at paragraphs 122 to 123).

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

United Kingdom

The United Kingdom has ratified the New York Convention, its predecessor the Geneva Convention, and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (known as the Washington or the ICSID Convention).

The Act governs the recognition and enforcement of arbitral awards in England, Wales and Northern Ireland.

Section 66(1) of the Act provides that an award made by a tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. Where leave is so given, judgment may be entered in the terms of the award (Act, section 66(2)). Section 66 of the Act is mandatory and applies to arbitrations seated both inside and outside England and Wales or Northern Ireland (Act, sections 2(2)(b) and 4(1)).

Part III of the Act contains provisions for the recognition and enforcement of foreign awards. Section 101(1) provides that a New York Convention award made outside the United Kingdom shall be recognised as binding on the persons as between whom it was made, and may be relied on by those persons by way of defence, set-off or otherwise in any legal proceedings. Pursuant to section 101(2) of the Act, a New York Convention award may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. When leave is so given, judgment may be entered in the terms of the award (Act, section 101(3)).

Pursuant to section 99 of the Act, Part II of the Arbitration Act 1950, which deals with enforcement, applies to Geneva Convention awards that are not New York Convention awards. Foreign awards that are neither New York Convention nor Geneva Convention awards may be capable of enforcement under legislation applicable to the registration of foreign judgments if the award has become enforceable in the same manner as a judgment in the place where it was made. It is also possible to enforce an arbitral award in England at common law by bringing an action on the award, ie, a contractual claim for non-performance of the award (Act, section 66(4)).

Matters of English court procedure are governed by the CPR, particularly Part 62 (Arbitration Claims). The registration and enforcement of ICSID awards are governed by a separate regime set out in the Arbitration (International Investment Disputes) Act 1966 and Rule 62.21 of the CPR, which implements the ICSID Convention.

The Act provides no separate procedure for seeking recognition of an award (other than by way of defence or set-off or otherwise in any legal proceedings; section 101(1)).

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

United Kingdom

The New York Convention entered into force in the United Kingdom on 23 December 1975. A reciprocity reservation is in effect.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

United Kingdom

Claims to enforce an award are subject to the same limitation periods as apply to an action on the award (National Ability SA v Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330). The limitation period is six years from the date on which the cause of action accrued, unless the arbitration agreement is under seal (Limitation Act 1980, section 7). The cause of action accrues at the date when the other party fails to comply with the award (see Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd [1985] 1 WLR 762, per Otton J at 773).

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

United Kingdom

An application for leave to enforce an award may be made to the High Court or the County Court (PD62(2.1)). In practice, the application should usually be made to the High Court (Admiralty & Commercial Registry).

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

United Kingdom

The English courts are bound to recognise and enforce foreign awards under the New York Convention unless one of the grounds for refusing recognition and enforcement in section 103 of the Act is made out. The court’s permission is required to serve the claim form on a defendant out of the jurisdiction but the presence of assets within the jurisdiction is not a precondition for granting leave to enforce (Rosseel NV v Oriental Commercial & Shipping Co (UK) Ltd [1991] 2 Lloyd’s Rep 625).

When an arbitration is seated in England, Wales or Northern Ireland, the English courts have supervisory jurisdiction over the arbitration and may grant interim measures in support of enforcement of the award, even when there are no assets in the jurisdiction and enforcement will take place abroad.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

United Kingdom

An application for leave to enforce an award under either section 66(1) or section 101(2) of the Act may be made ex parte in an arbitration claim form (CPR, Rule 62.18(1)). The court may direct the arbitration claim form to be served, in which case the claim form should be validly served on the defendant (CPR, Rule 62.18(2)). The enforcement proceedings will then continue as adversarial proceedings (see CPR, Rule 62.18(3)). If the court grants leave to enforce the award ex parte, the defendant will be served with the order and will have 14 days (or such longer time as specified by the court) to apply to have the order set aside (CPR, Rule 62.18(9)).

21. What documentation is required to obtain recognition?

United Kingdom

An application for leave to enforce an award should be made in an arbitration claim form (N8) (CPR, Rules 62.3 and 62.18(1)). The arbitration claim form should be supported by an affidavit or witness statement containing the information specified in Rule 62.18(6) of the CPR and exhibit originals or copies of the arbitration agreement and the award (Rule 62.18(6)(a)). Originals or duly certified copies of these documents must be submitted if the award is a New York Convention award (Act, section 102(1)).

The claimant must also submit two copies of a draft court order granting permission to enforce the award to be served on the defendant. The order must contain a statement of the defendant’s right to apply to set aside the order within 14 days (or such longer period as the court directs) and a statement that the award will not be enforced until that period has expired or any application made by the defendant within the time limit has been finally disposed of (CPR, Rule 62.18(7), (9) and (10)).

If the claimant seeks to enforce an award providing for post-award interest, the claimant must also file a statement of interest containing the information specified in Rule 62.19(1) of the CPR.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

United Kingdom

A translation of the arbitration agreement and award certified by an official or sworn translator or by a diplomatic or consular agent must be submitted in the case of a New York Convention award (Act, section 102(2)).

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

United Kingdom

A party seeking leave to enforce an award will need to pay the applicable court fee (currently £71 in the High Court of England and Wales or £47 in the County Court). Additional court fees will be payable when applying for execution against an award debtor’s assets.

A party seeking leave to enforce an award on an ex parte basis is subject to a duty of full and frank disclosure. This means that the court should be informed of all material facts, including any pending set-aside proceedings and any potential defences of state immunity.

Failure to give full and frank disclosure may lead to an ex parte order being set aside or to costs sanctions (see, for example, Gold Reserve Inc. v The Bolivarian Republic of Venezuela [2016] EWHC 153 (Comm), in which the court exceptionally upheld an ex parte order granting permission to enforce an ICSID award despite the claimant’s failure to give full and frank disclosure of Venezuela’s state immunity defence, imposing costs sanctions instead).

24. Do courts recognise and enforce partial or interim awards?

United Kingdom

Whether a partial or interim order, decision or award of an arbitral tribunal is enforceable will depend on whether it is an award for the purposes of section 66 or section 100(1) of the Act.

A partial award made in England, Wales or Northern Ireland under section 47 of the Act that finally disposes of some of the issues in dispute will be capable of enforcement as an award under section 66 since, under section 58(1) of the Act, such a decision will be final and binding (unless otherwise agreed). In contrast, provisional orders that are subject to further review by the tribunal, or procedural decisions, orders or directions, will not be enforceable as an award. However, they may be enforced by the court under section 42 of the Act if made as a peremptory order by the tribunal under section 41 of the Act. The court may order the defaulting party to comply with the tribunal’s peremptory order, thus converting the tribunal’s order into a court order, with all the associated sanctions for non-compliance (see, for example, Pearl Petroleum Co Ltd and others v Kurdistan Regional Government of Iraq [2015] EWHC 3361 (Comm)). When considering the effect of a decision by a tribunal (ie, whether the decision finally disposes of some of the issues in dispute and is therefore an award, rather than a provisional order for the purposes of enforcement), the courts look at the substance of the tribunal’s decision and not the label (Rotenberg v Sucafina SA [2012] EWCA Civ 637; Republic of Uganda v Rift Valley Railways (Uganda) Ltd [2021] EWHC 970 (Comm)).

In Svenska Petroleum Exploration AB v Lithuania (No. 1) [2005] EWHC 9 (Comm), the court recognised a foreign jurisdictional award under section 103(2) of the Act by permitting the claimant to rely upon it as a defence to the defendant’s application to set aside the order granting permission to enforce the award under sections 101 to 103 of the Act. However, obiter statements by the Supreme Court in Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 (per Lord Mance SCJ at paragraph 22) suggest that the English courts may refuse to recognise and enforce a foreign jurisdictional award that is not final as to its subject matter.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

United Kingdom

If recognition or enforcement is sought of a foreign award under section 101 of the Act, the grounds for refusal are the same as in article V of the New York Convention (implemented by section 103 of the Act).

The English courts adopt a pro-enforcement approach and are reluctant to refuse enforcement on the grounds of public policy (see, for example, Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd and others [2000] Q.B. 288, in which enforcement was ordered despite public policy considerations relating to alleged illegality). If a tribunal has found that there is no illegality under the governing law of the contract, but there is illegality under English law, public policy will be engaged only if the illegality reflects considerations of international public policy rather than domestic public policy (RBRG Trading (UK) Ltd v Sinocore International Co Ltd [2018] EWCA Civ 838, per Hamblen LJ at paragraph 25).

In circumstances where a foreign court has already refused enforcement of the same award, recognition and enforcement may be refused if the foreign court judgment creates an issue estoppel (see Diag Human SE v Czech Republic [2014] EWHC 1639 (Comm) and Yukos Capital Sarl v OJSC Rosneft Oil Co [2012] EWCA Civ 855).

If an application for leave to enforce an award is made under section 66 of the Act, the courts must refuse leave to enforce an award when, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award (see section 66(3)). This is subject, however, to the loss of the right to object stipulated in section 73 of the Act. In considering applications for leave to enforce under section 66, the courts have also recognised discretionary grounds for refusing enforcement, which mirror those under the New York Convention set out in section 103(2) of the Act.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

United Kingdom

If an order for leave to enforce is granted on an ex parte basis, the court’s order must be served on the defendant, who will then have 14 days (or such longer time as the court may specify) to apply to set aside the order on the basis that one of the grounds for refusing enforcement under article V of the New York Convention applies. The order may also be set aside if there has been a failure to make full and frank disclosure. The award must not be enforced until after that period expires or any challenge brought by the defendant within that period is finally determined (CPR, Rule 62.18(9)). Thereafter, judgment may be entered in the terms of the award and the award may be enforced in the same manner as any judgment of the English courts.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

United Kingdom

A decision of the High Court refusing leave to enforce an award (or setting aside an order for permission to enforce an award) may be appealed with the permission of the court on a point of law.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

United Kingdom

The English courts have discretion under section 103(5) of the Act to adjourn enforcement proceedings pending the conclusion of set-aside proceedings at the seat. If permission to enforce the award has already been granted, the court has the power to order a stay of execution.

The approach of the English courts is usually to adjourn enforcement of an award (either with or without payment of security) pending the outcome of the annulment proceedings at the seat. Relevant factors when deciding whether to adjourn will usually include:

• whether the application before the courts at the seat of the arbitration is bona fide and not simply a delay tactic;
• whether the application before the courts at the seat of the arbitration has at least a real (ie, realistic) prospect of success;
• whether an issue of foreign law needs to be determined and it would be sensible to have the courts at the seat of the arbitration determine the issue (in order to avoid the risk of a conflicting judgment of the English courts on the same issue; see Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48, per Lord Hamblen SCJ and Lord Leggatt SCJ at paragraph 87); and
• the extent of the delay occasioned by the adjournment and any resulting prejudice (see IPCO (Nigeria) Limited v Nigeria National Petroleum Corporation [2005] EWHC 726 (Comm), per Gross J at paragraph 15).

In IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2015] EWCA Civ 1144 and [2015] EWCA Civ 1145, the Court of Appeal ruled for the first time that an arbitral award subject to pending annulment proceedings at the seat of the arbitration that had a reasonable prospect of success could, in principle, be enforced because of exceptional and ‘catastrophic’ delays in the Nigerian court system if the English courts later determined that enforcement of the award would not be contrary to English public policy.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

United Kingdom

If, under section 103(5) of the Act, the court adjourns a decision on enforcement of an arbitral award pending annulment proceedings at the seat of the arbitration, it may (but is not required to) order the award debtor to give suitable security on an application by the enforcing party.

When considering whether or not to grant security, the court will look at the strength of the argument for setting aside the award at the seat of the arbitration and the ease or difficulty of enforcing the award if an order for security is refused (Soleh Boneh International Ltd v The Government of the Republic of Uganda [1993] 2 Lloyd’s Rep 208).

If an adjournment application is brought by the award creditor and resisted by the award debtor, this will be ‘a very important factor militating against an order for security’ (Stati and others v The Republic of Kazakhstan [2015] EWHC 2542 (Comm), per Popplewell J at paragraph 16; Eastern European Engineering Ltd v Vijay Construction (Proprietary) Ltd [2017] EWHC 797 (Comm), per Baker J at paragraph 24).

The award debtor may be required to give security for part of the award (as in Soleh Boneh) or for the full amount of the award (as in Travis Coal Restructured Holdings LLC v Essar Global Fund Ltd [2014] EWHC 2510 (Comm), in which the court considered there was no realistic prospect of the foreign annulment proceedings succeeding and a risk that the defendant may restructure its assets out of the jurisdiction before determination of the challenge).

The Supreme Court has confirmed that there is no general power under section 103 of the Act to order an award debtor to post security if enforcement is resisted where there is no adjournment pending a decision by the courts of the seat (see IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2017] UKSC 16, in which the court allowed an appeal on the issue of security).

A similar approach is adopted if permission to enforce an award has already been granted and a party seeks a stay of execution of either an award being enforced in England, Wales or Northern Ireland (see Socadec SA v Pan Afric Impex Co Ltd [2003] EWHC 2086), or the overseas enforcement of an award made in England, Wales or Northern Ireland (see Apis AS v Fantazia Kereskedelmi KFT [2001] 1 All ER (Comm) 348). In these cases, the courts have granted a stay of execution if the party seeking the stay puts up security.

In proceedings for registration of an ICSID award, the court has the power to grant a limited stay of execution, on procedural grounds (see Micula and others v Romania [2020] UKSC 5).

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

United Kingdom

A foreign award set aside at the seat of the arbitration may be recognised and enforced if the judgment setting aside the award is (under English private international law rules relating to the recognition and enforcement of foreign judgments) impeachable for fraud, contrary to natural justice, or otherwise contrary to public policy (see Yukos Capital S.a.r.L v OJSC Oil Company Rosneft [2014] EWHC 2188 and Malicorp Ltd v Government of the Arab Republic of Egypt, Egyptian Holding Company for Aviation and Egyptian Airports Company [2015] EWHC 361 (Comm)). Although this possibility has been recognised under English law, the English courts have not yet enforced an award set aside by the courts at the seat of the arbitration.

In Nikolay Viktorovich Maximov v Open Joint Stock Company ‘Novolipetsky Metallurgichesky Kombinat’ [2017] EWHC 1911 (Comm), the High Court stated that a claimant seeking to enjoin the court to exercise its discretion to enforce a set-aside award ‘bears a heavy burden’ and must ‘establish not only that [the] foreign court’s decisions were wrong or manifestly wrong but that they are so perverse as for it to be concluded that they could not have been arrived at in good faith or otherwise than by bias’ (Sir Michael Burton at paragraph 53).

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

United Kingdom

The applicable rules for service within the jurisdiction are set out in Rules 6 and 62 of the CPR.

The court may direct that the arbitration claim form should be served on specified parties to the arbitration (CPR, Rule 62.18(2)). Unless ordered otherwise by the court, an arbitration claim form should be served on the defendant within one month of the date of issue (CPR, Rule 62.4(2)). Permitted modes of service include first-class post, DX, fax, email and other electronic means of communication (PD62(1.3)). If the arbitration claim form is served by the claimant, he or she must file a certificate of service within seven days of service (PD62(3.2)). An order giving permission to enforce an award must be served on the defendant by delivering a copy to the defendant personally or by sending a copy to the defendant at his or her usual or last known place of residence or business (CPR, Rule 62.18(7)).

The general translation requirements set out in the CPR will apply.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

United Kingdom

The Hague Service Convention entered into force in the United Kingdom on 10 February 1969. The applicable rules for obtaining permission for service outside of the jurisdiction are set out in Rules 6 (PD6B) and 62 of the CPR. An arbitration claim form seeking leave to enforce an award may be served outside the jurisdiction with the permission of the court, irrespective of where the award is made, or treated as made (CPR, Rule 62.18(4)). Service of the court’s order giving permission to enforce an award outside the jurisdiction does not require the court’s permission (CPR, Rule 62.18(8)).

The court may permit service to be effected on a party’s solicitors of record in the arbitration within the jurisdiction in certain circumstances, to avoid the need for service outside the jurisdiction (CPR, Rule 6.15(1); PD62(3.1); Kyrgyz Republic Ministry of Transport Department of Civil Aviation v Finrep GmbH [2006] 2 CLC 402, per Tomlinson J at paragraph 29; Joint Stock Asset Management Company Ingosstrakh Investments v BNP Paribas SA [2012] EWCA Civ 644, per Stanley Burnton LJ at paragraph 74).

When the party to be served is a state or state entity, additional service requirements set out at section 12 of the State Immunity Act 1978 (the SIA 1978) and in Rules 6.44 and 6.46 of the CPR may also apply.

The documents should be served accompanied by a translation in the official language of the country in which it is to be served and a statement by the person making it that it is a correct translation. The statement should include that person’s name, address and qualifications for making it (CPR, Rule 6.45(1) to (3)).

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

United Kingdom

A number of publicly available registers and databases may be consulted, including:

• the Insolvency Register – to confirm whether an individual award debtor is bankrupt or subject to any related orders;
• the Land Registry – to confirm ownership details for properties and details of any registered charges;
• the attachment of earnings index – to confirm whether individual award debtors have any other attachment of earnings orders against them;
• Companies House – a search will provide information about a UK company or a UK limited liability partnership, including ownership, copies of accounts and details of whether a company is in administration or liquidation;
• the Register of Judgments, Orders and Fines – contains details of County Court and High Court judgments from 6 April 2006 for the payment of money (except for certain exempt judgments);
• the Insolvency and Companies List – a search of the court’s database will confirm whether administrators have been appointed by a company or related applications made to the court;
• the Maritime and Coastguard Agency and the Ships and Lloyd’s Register – contain information regarding ships; and
• the Aircraft Registration Section of the Civil Aviation Authority and the UK Register of Aircraft Mortgages – contain information regarding aircraft and aircraft mortgages.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

United Kingdom

Once permission to enforce an award has been granted, the award creditor may make an ex parte application under Rule 71 of the CPR to the court or County Court hearing centre that made the enforcement order for an order requiring the award debtor (or, if the award debtor is a company, an officer of the company) to attend court to provide information that may facilitate enforcement of the award (eg, relating to the award debtor’s assets). Failure by an award debtor to comply with this procedure risks sanction from the court (CPR, Rule 71.8).

35. What kinds of assets can be attached within your jurisdiction?

United Kingdom

Personal and real property, shares, funds in court, dividends and interest, beneficial interests under trusts, money debts owed by third parties to an award debtor, and any wages owed to an award debtor, may all be used to satisfy an award, with the measures available to award creditors listed at PD70A.

36. Are interim measures against assets available in your jurisdiction?

United Kingdom

The court has the power to grant interim relief in support of enforcement proceedings. There is some uncertainty in the case law about whether the court’s powers to do so derive from section 44 of the Act (which is the source of the court’s powers to award interim relief in support of arbitration proceedings, whether seated inside or outside England, Wales or Northern Ireland), or from section 37 of the Senior Courts Act 1981 (which sets out the court’s inherent powers to award interim relief in all court proceedings). Note however that interim relief under section 44 may not be available where parties have agreed to institutional rules that provide for the appointment of an ‘emergency arbitrator’ or the expedited formation of a tribunal and an emergency arbitrator or expeditedly formed tribunal would have the power or practical ability to grant effective relief within the relevant timescale (Gerald Metals SA v Timis [2016] EWHC 2327 (Ch), per Leggatt J at paragraphs 54 to 55).

The most commonly sought interim measure is a freezing order to restrain the award debtor from dissipating assets. Freezing orders are available, in principle, in respect of any type of asset (including, for example, land, securities and bank accounts) provided the applicant can show a real risk that assets will be dissipated or that the award will go unsatisfied, and that it is just and convenient for the court to make the order.

If an award relates to an arbitration seated in England, Wales or Northern Ireland, the court may grant a worldwide freezing order even where: (i) there are no assets within the jurisdiction; (ii) enforcement will take place abroad; and (iii) the enforcing courts have the relevant power to grant a freezing order (U&M Mining Zambia Ltd v Konkola Copper Mines plc [2014] EWHC 3250 (Comm)). If the award relates to an arbitration seated outside England, Wales and Northern Ireland, the court may refuse to exercise its powers to grant such relief if it considers that it is inappropriate to do so. The English courts may consider granting a worldwide freezing order in support of enforcement of a foreign arbitral award where no assets are within the jurisdiction if ‘international fraud’ is apparent (ArcelorMittal USA LLC v Essar Steel Limited and others [2019] EWHC 724 (Comm), per Jacobs J at paragraph 73).

The Court of Appeal has recently confirmed that when granting relief relating to ‘the taking of the evidence of witnesses’ under section 44(2)(a) of the Act, the English courts have the power to make orders against non-parties to the arbitration (A v C [2020] EWCA Civ 409). When the English courts exercise their powers under other sub-sections of section 44(2), however, the question as to whether they can make orders against non-parties is less clear. In Cruz City 1 Mauritius Holdings v Unitech Limited and others [2014] EWHC 3704 (Comm) and DTEK Trading SA v Morozov [2017] EWHC 94 (Comm), which concerned other sub-sections of section 44(2), the High Court held that it could not make orders against non-parties. In A v C, the Court of Appeal did not rule on whether Cruz City and DTEK were correctly decided, preferring to leave that issue to another occasion on which it arises directly on appeal (A v C, per Flaux LJ at paragraph 35).

Under section 13(2)(a) of the SIA 1978, the property of a state (as defined in the SIA 1978) will be immune from injunctive relief absent any express waiver of immunity.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

United Kingdom

An application for interim relief under section 44 of the Act should be made in accordance with the procedure for arbitration claims set out in Rule 62 of the CPR. The general court rules relating to interim relief, including the requirements that apply for freezing orders, are contained in Rule 25 of the CPR.

As set out in Rule 25, an application for a freezing order may be made ex parte and will require supporting evidence in the form of an affidavit (PD25A(3.1)). This will need to provide details of the respondent’s assets and the risk of their dissipation, an explanation of the respondent’s likely defences and the urgency of the application. The applicant will usually be required to provide a cross-undertaking for any damage suffered by the respondent as a result of complying with the order. The application should be accompanied by a draft freezing order in the form annexed to PD25A and the relevant court fee.

The application and the supporting evidence, with the court’s order, will need to be served on the respondent and any third parties holding assets on behalf of the respondent. The respondent (or anyone served with or notified of the freezing order) may apply to court to have the order varied or set aside.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

United Kingdom

An application for interim relief under section 44 of the Act should be made in accordance with the procedure for arbitration claims set out in Rule 62 of the CPR. The general court rules relating to interim relief, including the requirements that apply for freezing orders, are contained in Rule 25 of the CPR.

As set out in Rule 25, an application for a freezing order may be made ex parte and will require supporting evidence in the form of an affidavit (PD25A(3.1)). This will need to provide details of the respondent’s assets and the risk of their dissipation, an explanation of the respondent’s likely defences and the urgency of the application. The applicant will usually be required to provide a cross-undertaking for any damage suffered by the respondent as a result of complying with the order. The application should be accompanied by a draft freezing order in the form annexed to PD25A and the relevant court fee.

The application and the supporting evidence, with the court’s order, will need to be served on the respondent and any third parties holding assets on behalf of the respondent. The respondent (or anyone served with or notified of the freezing order) may apply to court to have the order varied or set aside.

39. What is the procedure for interim measures against movable property within your jurisdiction?

United Kingdom

An application for interim relief under section 44 of the Act should be made in accordance with the procedure for arbitration claims set out in Rule 62 of the CPR. The general court rules relating to interim relief, including the requirements that apply for freezing orders, are contained in Rule 25 of the CPR.

As set out in Rule 25, an application for a freezing order may be made ex parte and will require supporting evidence in the form of an affidavit (PD25A(3.1)). This will need to provide details of the respondent’s assets and the risk of their dissipation, an explanation of the respondent’s likely defences and the urgency of the application. The applicant will usually be required to provide a cross-undertaking for any damage suffered by the respondent as a result of complying with the order. The application should be accompanied by a draft freezing order in the form annexed to PD25A and the relevant court fee.

The application and the supporting evidence, with the court’s order, will need to be served on the respondent and any third parties holding assets on behalf of the respondent. The respondent (or anyone served with or notified of the freezing order) may apply to court to have the order varied or set aside.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

United Kingdom

An application for interim relief under section 44 of the Act should be made in accordance with the procedure for arbitration claims set out in Rule 62 of the CPR. The general court rules relating to interim relief, including the requirements that apply for freezing orders, are contained in Rule 25 of the CPR.

As set out in Rule 25, an application for a freezing order may be made ex parte and will require supporting evidence in the form of an affidavit (PD25A(3.1)). This will need to provide details of the respondent’s assets and the risk of their dissipation, an explanation of the respondent’s likely defences and the urgency of the application. The applicant will usually be required to provide a cross-undertaking for any damage suffered by the respondent as a result of complying with the order. The application should be accompanied by a draft freezing order in the form annexed to PD25A and the relevant court fee.

The application and the supporting evidence, with the court’s order, will need to be served on the respondent and any third parties holding assets on behalf of the respondent. The respondent (or anyone served with or notified of the freezing order) may apply to court to have the order varied or set aside.

41. What is the procedure to attach assets in your jurisdiction?

United Kingdom

Once the court has granted permission to enforce the award in the same manner as a judgment and the time limit for challenging the court’s order has elapsed, the award creditor may seek to avail itself of any of the usual measures available for enforcing a money judgment in England. These measures are listed in PD70A(A1.1) and include writs or warrants for the control of goods (CPR, Rules 83 and 84), third-party debt orders (CPR, Rule 72), charging orders (CPR, Rule 73), attachment of earnings orders (CPR, Rule 89), and the appointment of a receiver (CPR, Rule 69). Other potential measures include initiating winding-up or insolvency proceedings. The procedure varies depending on the measure pursued.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

United Kingdom

An award creditor may apply for a charging order to obtain a charge over the award debtor’s beneficial interest in land (as well as securities or certain other assets). The procedure is set out in Rule 73 of the CPR and involves an application (usually ex parte) to court for an interim charging order. The order will be served on the defendant and the court will fix a hearing to consider whether a final charging order should be issued. Once in possession of a final charging order, the award creditor may realise the assets by applying for an order for sale of the property.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

United Kingdom

An award creditor may seek a writ or warrant for control of the award debtor’s goods located within England, Wales or Northern Ireland using the procedures set out in Rules 83 to 85 of the CPR, Schedule 2 of the Tribunal, Courts and Enforcement Act 2007 and the Taking Control of Goods Regulations 2013. The procedure enables an enforcement officer to seize and sell goods (except to the extent they are exempt) to raise funds to satisfy the award debt.

A writ or warrant of control can be issued by the court, without notice, following production of documents and on payment of a fee (although notice must be provided to the award debtor prior to enforcement). In certain circumstances, the prior permission of the court will be required (see CPR, Rule 83.2(3)) and an application to obtain that permission should be made in accordance with the procedure set out in Rule 23 of the CPR.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

United Kingdom

In addition to a charging order, an award creditor may apply for a third-party debt order compelling a third party within the jurisdiction that owes money to the award debtor to pay those funds directly to the award creditor (CPR, Rule 72.1(1)). Third-party debt orders may be used to obtain funds held in bank accounts within the jurisdiction in the name of the award debtor. The procedure is set out in Rule 72 of the CPR and involves a two-phase process of obtaining an interim and final third-party debt order from the court.

If the award debtor is an individual, it may also be possible to obtain an order from the County Court Money Claims Centre attaching his or her earnings in accordance with the procedure set out in Rule 89 of the CPR.

Exceptionally, if other legal methods of execution are unavailable, it may be possible to apply to the court for the appointment of a receiver over the award debtor’s assets to assist in the preservation or gathering of property in accordance with the procedure in Rule 69 of the CPR.

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

United Kingdom

A third-party debt order can only be made if the third party (the bank) is within the jurisdiction (CPR, Rule 72.1(1)). There is no requirement that the debt be recoverable within the jurisdiction. However, as a matter of discretion, the court will not permit attachment when, although the bank is within the jurisdiction, the debt is recoverable outside the jurisdiction, and it would expose the bank to the risk of having to pay the debt twice (see The White Book, commentary on CPR, Rule 72.1(1)).

For instance, in Société Eram Shipping Company Limited v Compagnie Internationale de Navigation [2003] UKHL 30, the House of Lords found there was no jurisdiction to make a third-party debt order where the bank had a London branch but the judgment debtor’s account was in Hong Kong and Hong Kong law would not treat the debt as discharged by the court’s order.

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

United Kingdom

The SIA 1978 governs the immunity of states and quasi-state bodies (as defined in the SIA 1978) under English law. If a state has agreed in writing to submit a dispute to arbitration, it is not immune from proceedings in the English courts that relate to the arbitration (SIA 1978, section 9(1)). This waiver of immunity extends to court proceedings relating to the recognition and enforcement of foreign awards (Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta [2006] EWCA Civ 1529, per Moore-Bick LJ at paragraph 117). However, it does not extend to execution measures following recognition and enforcement, for which a separate, express waiver of immunity is required.

A state is not precluded from raising fresh jurisdictional arguments before the English courts that were not raised before the arbitral tribunal for the purposes of asserting immunity from jurisdiction in the context of enforcement proceedings (see PAO Tatneft v Ukraine [2018] EWHC 1797 (Comm), which concerned a bilateral investment treaty award).

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

United Kingdom

Service must follow the ‘mandatory and exclusive’ procedure set out in section 12(1) of the SIA 1978 in every case where the English court is exercising jurisdiction over a foreign state, including proceedings to enforce an award.

Section 12(1) requires a ‘writ or other document required to be served for instituting proceedings’ against a foreign state to be transmitted through the Foreign, Commonwealth and Development Office (the FCDO) to the Ministry of Foreign Affairs of the state. Service may also be effected in any manner to which the state has agreed (SIA 1978, section 12(6)).

The Supreme Court decision in General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22 clarified that a document giving notice of the proceedings to the state is required to be served on the state in order to institute enforcement proceedings against that state (per Lord Lloyd-Jones SCJ at paragraph 76). This document will be the arbitration claim form where the court requires it to be served. Otherwise, this document will be the order granting permission to enforce (per Lord Lloyd-Jones SCJ at paragraph 44).

Section 12(2) provides that any time for entering an appearance shall begin to run two months after the date on which the writ or document is received. However, these provisions do not apply if the state has agreed to the service of a writ or other document in another manner (SIA 1978, section 12(6)). Additional rules on the procedure for serving states are set out in Rule 6.44 of the CPR.

A translation must be served alongside any documents as set out in Rule 6.45 of the CPR when the official language of the country of service is not English (CPR, Rule 6.44(3)(c)).

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

United Kingdom

Where a state has agreed in writing for a dispute to be submitted to arbitration, the state is not immune from proceedings ‘which relate to the arbitration’. This includes proceedings for the recognition and enforcement of awards (Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta [2006] EWCA Civ 1529, per Moore-Bick LJ at paragraph 117).

A state is not precluded from raising new jurisdictional arguments before the English courts, not previously raised before the tribunal, for the purpose of asserting immunity from jurisdiction in the context of enforcement proceedings (PAO Tatneft v Ukraine [2018] EWHC 1797 (Comm), per Butcher J at paragraph 35).

A party may not take execution measures against the property of a state unless the state has given a separate, express waiver of its immunity from execution (SIA 1978, section 13(2)(b)) or execution proceedings are sought in respect of property which is in use or intended for use for commercial purposes (SIA 1978, section 13(4); SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40, per Lord Clarke SCJ at paragraphs 16 to 17).

49. May award creditors apply interim measures against assets owned by a sovereign state?

United Kingdom

Section 13(2)(a) of the SIA 1978 prevents an award creditor from obtaining any injunction or order for specific performance or recovery of land or other property unless the state has given specific written consent to the giving of any such relief, and the state’s agreement to submit the dispute to arbitration will not be treated as the giving of such consent (SIA 1978, section 13(3); see ETI Euro Telecom International NV v Republic of Bolivia and another [2008] EWCA Civ 880, per Stanley Burnton LJ at paragraph 127).

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

United Kingdom

Section 13(2) of the SIA 1978 provides that relief may not be given against a state by way of an injunction or order for specific performance or for the recovery of land or other property, and that the property of a state shall not be subject to any process for the enforcement of a judgment or arbitral award or, in an action in rem for its arrest, detention or sale. There are two exceptions to this rule: (1) the state may expressly agree in writing to waive its immunity from execution or injunctive relief (SIA 1978, section 13(3)); or (2) enforcement proceedings (but not injunctive relief) are permitted in respect of property belonging to the state if the relevant property is ‘in use or intended for use for commercial purposes’ (SIA 1978, section 13(4)). The state must have a proprietary interest in the assets in question; property belonging to a state-owned entity (even if subject to state control) will not constitute ‘property of a state’ for the purposes of the SIA 1978 (see Botas Petroleum Pipeline Corporation v Tepe Insaat Sanayii AS (Jersey) [2018] UKPC 31, per Lord Mance SCJ at paragraphs 21 to 22).

The leading case on the scope of the ‘commercial purposes’ exception is SerVaas Incorporated v Rafidain Bank and others [2012] UKSC 40, in which the Supreme Court considered whether debts owed to Iraq by an insolvent state-controlled bank fell within the commercial purposes exception because they had arisen from commercial transactions. The Court held that the commercial purposes exception does not take into account the origin or source of the property and, in the absence of any proof that the debts were to be applied for a commercial purpose, the claim failed.

The test thus focuses on the use to which the state’s property is put. For instance, in LR Avionics Technologies Ltd v The Federal Republic of Nigeria and another [2016] EWHC 1761 (Comm), the High Court discharged a charging order over state-owned premises leased to a company for the purposes of providing visa and passport services on the grounds that the services provided (although outsourced) were consular in nature and therefore the property was immune from execution.

Property of a state’s central bank or other monetary authority will not be regarded as ‘in use or intended for use for commercial purposes’, and where such a bank or authority is a separate entity, absent written consent, it will be immune from execution or from any relief by way of injunction or order for specific performance or for the recovery of land or other property (SIA 1978, section 14(4)).

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

United Kingdom

Pursuant to section 13(3) of the SIA 1978, a state may expressly agree in writing to waive immunity from execution. A written agreement by a state to submit a dispute to arbitration will constitute a waiver of immunity from proceedings in the English courts relating to the recognition and enforcement of an award but will not amount to a waiver of immunity from execution (Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta [2006] EWCA Civ 1529, per Moore-Bick LJ at paragraph 117).

To formulate the broadest possible waiver of immunity from execution, the waiver clause should cover immunity from execution both pre-award and post-award or judgment, extend to the relevant state, not just a particular state entity, and specify the categories of assets in respect of which immunity is being waived.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

United Kingdom

Whether an award against a foreign state can be enforced against a corporation owned by that state will usually depend on whether the entity in question is an organ of the state or a separate entity. This will require an assessment of the entity’s constitutional arrangements, and the degree of the foreign state’s control over the entity’s activities and functions. There is a strong presumption under English law that separate corporate status should be respected, which will only be displaced if the state-owned company (despite its juridical personality) has no ‘effective separate existence’ or its affairs and that of the state are ‘so closely intertwined and confused’ that the entity cannot be properly regarded for any significant purpose as distinct from the state (see La Générale des Carrières et des Mines v F.G. Hemisphere Associates LLC [2012] UKPC 27, per Lord Mance SCJ at paragraph 29). The presumption may also be displaced if the state has so interfered with, or behaved towards, a state-owned entity that it would be appropriate for the court to pierce the corporate veil.