"The Award be registered as if it had been a judgment of the High Court."
"Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or other document is received by the Ministry."
"The British Embassy presents its compliments to the Ministry of Foreign Affairs of the Arab Republic of Egypt and has the honour to request that the attached documents be forwarded to the competent authorities for service.
Two sets of documents are attached. One is "Service Set" and the other is "Return Set".
The British Embassy avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Arab Republic of Egypt the assurances of its highest consideration"
"It is honoured to return herewith the documents received attached to the Embassy Note No. 244 dated 22/4/2019, hoping they would be properly addressed as they do not fall within the scope of competence of the Office of the Assistant Foreign Minister for Consular Affairs and Egyptian Expatriates."
"process for service of documents in foreign proceedings on the Defendant, as a State, requires that those documents be directed to the correct department within the Defendant's government (which is not the Assistant's Office). According to the Hague Convention 1965, pursuant to which the Claimant sought service of the relevant documents via the FCO [SYW 2/10], service was to be effected on the Defendant's Office for International Judicial Co-operation at the Ministry of Justice, Magles El Shaab St., Lazoughly Square, Laxoughly, Cairo."
Registration of awards under the Arbitration (International Investment Disputes) Act 1966
(1) In this rule –
(a) 'the 1966 Act' means the Arbitration (International Investment Disputes) Act 196616;
(b) 'award' means an award under the Convention;
(c) 'the Convention' means the Convention on the settlement of investment disputes between States and nationals of other States which was opened for signature in Washington on 18th March 196517;
(d) 'judgment creditor' means the person seeking recognition or enforcement of an award; and
(e) 'judgment debtor' means the other party to the award.
(2) Subject to the provisions of this rule, the following provisions of Part 74 apply with such modifications as may be necessary in relation to an award as they apply in relation to a judgment to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 193318 applies –
(a) rule 74.1;
(b) rule 74.3;
(c) rule 74.4(1), (2)(a) to (d), and (4);
(d) rule 74.6 (except paragraph (3)(c) to (e)); and
(e) rule 74.9(2).
(3) An application to have an award registered in the High Court under section 1 of the 1966 Act must be made in accordance with the Part 8 procedure.
(4) The written evidence required by rule 74.4 in support of an application for registration must –
(a) exhibit the award certified under the Convention instead of the judgment (or a copy of it); and
(b) in addition to stating the matters referred to in rule 74.4(2)(a) to (d) state whether –
(i) at the date of the application the enforcement of the award has been stayed (provisionally or otherwise) under the Convention; and
(ii) any, and if so what, application has been made under the Convention, which, if granted, might result in a stay of the enforcement of the award.
(5) Where, on granting permission to register an award or an application made by the judgment debtor after an award has been registered, the court considers –
(a) that the enforcement of the award has been stayed (whether provisionally or otherwise) under the Convention; or
(b) that an application has been made under the Convention which, if granted, might result in a stay of the enforcement of the award, the court may stay the enforcement of the award for such time as it considers appropriate.
"This rule provides the machinery for the registration of an award rendered pursuant to the Convention set out in the Schedule to the Arbitration (International Investment Disputes) Act 1966. The procedure follows, in large measure, but with the necessary modifications, the provisions of CPR r.74, since this Act is in many respects similar to the Foreign Judgments (Reciprocal Enforcement) Act 1933."
"A person seeking recognition or enforcement of such an award shall be entitled to have the award registered in the High Court subject to proof of the prescribed matters and to the other provisions of this Act."
(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section, "award" shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52.
(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.
"Unless an ICSID award is annulled pursuant to this procedure, the courts of Contract States are bound to recognise and enforce it in accordance with Art.54 (1), to which effect is given in England by ss.1 and 2 of the 1966 Act".
"scope for some additional defences against enforcement, in certain exceptional or extraordinary circumstances which are not defined, if national law recognises them in respect of final judgments of national courts and they do not directly overlap with those grounds of challenge to an award which are specifically allocated to Convention organs under articles 50 to 52 of the Convention.' (Paragraph )."
"An application to have an award registered in the High Court under section 1 of the 1966 Act must be made in accordance with the Part 8 procedure"
Mr. Malek submitted that this must mean the full Part 8 procedure, including the service of the Claim Form out of the jurisdiction and the service of evidence leading to an inter partes determination, in the usual way of a Part 8 application, of the award creditor's entitlement to registration.
"The reason the documents were returned and no service was effected was because the process for service of documents in foreign proceedings on the Defendant, as a State, requires that those documents be directed to the correct department within the Defendant's government (which is not the Assistant's Office)".
a) whether there is a good reason to validate the proposed steps for service;
b) whether the document has come to the attention of the party intended to be served. This is the sole purpose of service, but is not itself sufficient to amount to a good reason for alternative service;
c) the conduct of the claimant and of the defendant – if one party is playing technical games, this will count against them.
"On an application without notice the duty of the applicant is to make a full and fair disclosure of all the material facts, i.e. those which it is material (in the objective sense) for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers; the duty is a strict one and includes not merely material facts known to the applicant but also additional facts which he would have known if he had made proper enquiries: Brink's Mat Ltd v Elcombe  1 WLR 1350,1356-1357. But an applicant does not have a duty to disclose points against him which have not been raised by the other side and in respect of which there is no reason to anticipate that the other side would raise such points if it were present."
"As with all discretionary considerations, much depends on the facts…The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose."
a) UFG's failure to disclose to Waksman J. a Court of Appeal dictum in General Dynamics that alternative service is not available where the defendant is a state;
b) Waksman J's order did not comply with CPR r. 23.9 (3) which requires that an order made without notice must contain a statement of the right to make an application to set aside or vary the order.
c) The Teare J. and Waksman J. orders were obtained on the basis of a representation that registration of an ICSID award is "automatic".
"Conclusion on first issue
. It follows, in our judgment, that it was not mandatory in this case that either the arbitration claim form or the order permitting the enforcement of the award as a judgment had to be served through the FCO. The order permitting the enforcement of the award did, of course, have to be served pursuant to CPR 62.18(8)(b) and CPR 6.44(which deals with service of documents on a foreign state) but the court has jurisdiction in an appropriate case to dispense with service in accordance with CPR 6.16 and/or 6.28. If that course is taken it will, of course, always be appropriate to notify the state that the order has been made and, therefore, to make arrangements (as Teare J did) to notify the state in such a way as will come to the attention of the organs of state which will be responsible for honouring the award.
. We stress, however, that such notification does not amount to alternative service and must not be used as a proxy for such service which (counsel agreed) cannot be used where the respondent is a state. CPR 6.16 and 6.28 draw a distinction between dispensing with service of a claim form which may only be ordered "in exceptional circumstances" and dispensing with service in other circumstances as to which there is a general discretion. Strictly speaking, therefore, it could be said that a judge has a general discretion to dispense with service of the order permitting enforcement of the award. We nevertheless consider that, when the order permitting enforcement of the award is to be the first time that the foreign state receives notice of a claimant's attempt to enforce an award, it is only right and proper that the court should apply the test of exceptional circumstances. It is in this way that the valid policy considerations mentioned in para 58 can (and must) be taken into account, while the court is enabled to take into account the countervailing policy of enforcing awards in an appropriate case. The judge was thus quite correct to apply the test of exceptional circumstances to the question of dispensing with service in this case. That is the test which he applied when he dealt with the matter in case he was wrong on the first issue. (Emphasis supplied)"
"Given that registration of ICSID awards is intended to be automatic, I believe that if Egypt sought to raise any of the matters below, its submissions would be without merit"
"It is well settled that the claim form need not be served on a defendant for the enforcement of a New York Convention award, unless the Court orders otherwise. Enforcement of ICSID Awards is intended to be a more straightforward process than enforcement of a New York Convention award – not least because, unlike in the case of a New York Convention award, the English courts do not have jurisdiction to set aside or refuse recognition of an ICSID Award".
Get access to the most extensive & reliable source of information in arbitrationREQUEST A FREE TRIAL
Already registered ?