General Dynamics United Kingdom Ltd (Respondent) v State of Libya (Appellant)

Trinity Term

[2021] UKSC 22

On appeal from: [2019] EWCA Civ 1110

Appellant	Respondent
Harry Matovu QC	Daniel Toledano QC
Lucas Bastin	James Ruddell

LORD LLOYD-JONES: (with whom Lord Burrows agrees)

1. In 2013 General Dynamics United Kingdom Ltd (“General Dynamics”) commenced arbitration proceedings against the State of Libya (“Libya”) in which it claimed money said to be owing to it under a contract for the supply of communications systems. On 5 January 2016 an ICC arbitral tribunal in Geneva issued an award of £16,114,120.62 plus interest and costs, in favour of General Dynamics (“the award”). Libya has made no payment of the sum awarded.

2. On 21 June 2018, General Dynamics issued an arbitration claim form and made an application without notice pursuant to section 101(2) and (3) of the Arbitration Act 1996 (“the 1996 Act”) and Civil Procedure Rules (“CPR”) 6.16 and/or 6.28 for (1) permission to enforce the award in the same manner as a judgment or order of the court; (2) judgment to be entered against Libya as prescribed in the award, with interest; and (3) permission to dispense with service of the arbitration claim form, any order made by the court and any other associated documents.

3. On 20 July 2018, at a hearing without notice, Teare J made an order (“the enforcement order”) whereby he granted General Dynamics permission to enforce the award in the same manner as a judgment or order of the court and entered judgment against Libya. Teare J also granted General Dynamics permission to dispense with service of the arbitration claim form, any order made by the court and any other associated documents, concluding that exceptional circumstances existed in Libya which justified the order sought. However, he directed that the arbitration claim form, any order of the court and any other associated documents be couriered to two addresses in Tripoli and one address in Paris, and that Libya should have two months from the date of the enforcement order within which to apply to set it aside.

4. By an application notice dated 19 September 2018, Libya applied to vary the enforcement order so as to (1) set aside the order granting permission to dispense with service of the arbitration claim form, the enforcement order and associated documents and the direction that they be couriered to addresses in Tripoli and Paris and (2) require that service on Libya must be effected through diplomatic process as the method of service in section 12 of the State Immunity Act 1978 (“SIA”).

5. Following a one-day hearing in the Commercial Court on 18 December 2018, Males LJ, sitting at first instance, on 18 January 2019 set aside those parts of the enforcement order whereby General Dynamics had been granted permission to dispense with service and had been directed to courier the arbitration claim form, the enforcement order and associated documents to addresses in Tripoli and Paris:

[2019] 1 WLR 2913. In his judgment Males LJ held that:

(1) Service of court proceedings through what was the Foreign and Commonwealth Office (“FCO”) and is now the Foreign, Commonwealth and Development Office (“FCDO”) in accordance with section 12 SIA is essential in every case where the English court is to exercise jurisdiction over a foreign state (at para 36); and

(2) In the case of proceedings to enforce an arbitration award against a foreign state pursuant to section 101 of the 1996 Act:

(a) The “writ or other document required to be served for instituting proceedings” within the meaning of section 12(1) SIA was either the arbitration claim form (where the court required a claim form to be served) or the order granting permission to enforce the award (where, as was the case here, the court did not require a claim form to be served); and

(b) In either case, the relevant document had to be served on the foreign state in accordance with section 12 SIA (at para 78).

6. As a result, Males LJ concluded that the court did not have a discretion to dispense with service of the enforcement order under CPR rules 6.16 and/or 6.28 as this would be contrary to the mandatory terms of section 12 SIA. However, he observed, obiter, that if the court did have a discretion he would have exercised it in this case.

7. General Dynamics appealed to the Court of Appeal against the decision of Males LJ with the permission of the judge. By its appellant’s notice and grounds of appeal dated 6 February 2019 it submitted that Males LJ erred in concluding that:

(1) The enforcement order was a “writ or other document required to be served for instituting proceedings” within the meaning of section 12(1) SIA; and/or

(2) The court had no power to dispense with service of the enforcement order under CPR rules 6.16 and/or 6.28 if that order would otherwise fall within the terms of section 12(1) SIA.

8. Following a one day hearing on 13 June 2019, the Court of Appeal (Sir Terence Etherton MR, Longmore and Flaux LJJ) on 3 July 2019 allowed the appeal and set aside the order of Males LJ insofar as it had set aside or varied the enforcement order so as to require service of the enforcement order on Libya: [2019] 1 WLR 6137. In so doing, the Court of Appeal concluded that:

(1) It was not mandatory in this case that either the arbitration claim form or the enforcement order be served through the FCDO in accordance with section 12(1) SIA (at para 60);

(2) On the basis that section 12(1) SIA did not apply, the enforcement order would, ordinarily, have to be served pursuant to CPR rules 62.18(8)(b) and 6.44, but the court had jurisdiction in an appropriate case to dispense with service in accordance with CPR rules 6.16 and/or 6.28 (at para 60);

(3) It was not appropriate for the Court of Appeal to differ from Males LJ’s obiter conclusion that if he had had a discretion to dispense with service, he would have found that the circumstances were sufficiently exceptional to justify such dispensation in this case (at para 70).

9. The Court of Appeal refused Libya permission to appeal to the Supreme Court but on 20 February 2020 the Supreme Court (Lord Hodge, Lord Lloyd-Jones and Lord Kitchin) granted Libya permission to appeal.

10.       The following issues arise on this appeal:

(1) In proceedings to enforce an arbitral award against a foreign state pursuant to the 1996 Act, does section 12(1) SIA require service of a document on the foreign state by transmission through the FCDO to the Ministry of Foreign Affairs of the defendant state? In particular, is the arbitration claim form or the enforcement order a “writ or other document required to be served for instituting proceedings” within the meaning of section 12(1) SIA?

(2) In exceptional circumstances, is the court able, pursuant to CPR rules 6.16 and/or 6.28, to dispense with service of the enforcement order, notwithstanding that section 12(1) applies?

(3) Must section 12(1) SIA be construed, whether pursuant to section 3 of the Human Rights Act 1998 or the common law principle of legality, as implicitly allowing alternative directions as to service in exceptional circumstances, where a claimant’s right of access to the court under article 6 of the European Convention on Human Rights (“ECHR”) would otherwise be infringed?

Relevant legislation

11. The award is a New York Convention award enforceable pursuant to section 101 of the 1996 Act. This provides:

“(1) A New York Convention award shall be recognised as binding on the persons as between whom it was made, and may accordingly be relied on by those persons by way of defence, set-off or otherwise in any legal proceedings in England and Wales or Northern Ireland.

(2) 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.

[…]

(3)	Where leave is so given, judgment may be entered in

terms of the award.”

12.       CPR rule 62.18, which concerns the enforcement of arbitral awards, provides

in relevant part:

“(1)	An application for permission under -
[…]
(b) section 101 of the 1996 Act;

[…]
to enforce an award in the same manner as a judgment or order
may be made without notice in an arbitration claim form.

(2) The court may specify parties to the arbitration on whom the arbitration claim form must be served.

(3) The parties on whom the arbitration claim form is served must acknowledge service and the enforcement proceedings will continue as if they were an arbitration claim under section 1 of this Part.

[…]

(7)	An order giving permission must -
(a) be drawn up by the claimant; and (b) be served on the defendant by -

(i)        delivering a copy to him personally; or

(ii) sending a copy to him at his usual or last known place of residence or business.

(8)	An order giving permission may be served out of the

jurisdiction -

(a)	without permission; and

(b) in accordance with rules 6.40 to 6.46 as if the order were an arbitration claim form.

(9) Within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set -

(a)	the defendant may apply to set aside the order;
and
(b)	the award must not be enforced until after -
(i) the end of that period; or

(ii) any application made by the defendant within that period has been finally disposed of.

(10)	The order must contain a statement of -
(a) the right to make an application to set the order
aside; and
(b) the restrictions on enforcement under rule
62.18(9)(b).”

13.       The State Immunity Act 1978 provides in relevant part:

“Section 12 (Service of process and judgments in default of
appearance)

(1) Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.

(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid.

(3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired.

(5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry.

(6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner.

(7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction.

Section 13 (Other procedural privileges)

(2)	Subject to subsections (3) and (4) below -
[…]
(b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.
[…]

(4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes; but, in a case not falling within section 10 above, this subsection applies to property of a State party to the European Convention on State Immunity only if -

(a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration under article 24 of the Convention; or

(b)	the process is for enforcing an arbitration award.

Section 21 (Evidence by certificate)

A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question -

[…]

(d) whether, and if so when, a document has been

served or received as mentioned in section 12(1) or (5)
above.”

14.       CPR rule 6 makes provision in respect of service:

“6.1	(Part 6 rules about service apply generally)

This Part applies to the service of documents, except where -

(a) another Part, any other enactment or a practice direction makes different provision; or

(b)	the court orders otherwise.

[…]

6.16	(Power of court to dispense with service of the claim
form)
(1) The court may dispense with service of a claim form in exceptional circumstances.
(2) An application for an order to dispense with service may be made at any time and -

(a)	must be supported by evidence; and
(b)	may be made without notice.

[…]

6.28	(Power to dispense with service)
(1) The court may dispense with service of any document which is to be served in the proceedings.
[…]
6.44	(Service of claim form or other document on a State)
(1) This rule applies where a party wishes to serve the claim form or other document on a State.
(2) In this rule, ‘State’ has the meaning given by section 14 of the State Immunity Act 1978.
(3) The party must file in the Central Office of the Royal Courts of Justice -

(a) a request for service to be arranged by the Foreign and Commonwealth Office;

(b)	a copy of the claim form or other

document; and

(c)	any translation required under rule 6.45.

(4) The Senior Master will send the documents filed under this rule to the Foreign and Commonwealth Office with a request that it arranges for them to be served.

(5) An official certificate by the Foreign and Commonwealth Office stating that a claim form or other document has been duly served on a specified date in accordance with a request made under this rule is evidence of that fact.

(6) A document purporting to be such a certificate is to be treated as such a certificate, unless it is proved not to be.

(7)	Where -
(a) section 12(6) of the State Immunity Act
1978 applies; and
(b) the State has agreed to a method of service Commonwealth Office, other than through the Foreign and

the claim form or other document may be served either
by the method agreed or in accordance with this rule.

(Section 12(6) of the State Immunity Act 1978 provides that section 12(1) enables the service of a claim form or other document in a manner to which the State has agreed.)”

The evidence below in relation to effecting service

15. On the application before Teare J there was evidence before the court in the first witness statement of Mr Nicholas Brocklesby that solicitors for General Dynamics had been informed by the Foreign Process Office at the Royal Courts of Justice on 5 June 2018 that “the guideline timeframe for effecting service in Libya by [section 12(1) SIA] is ‘over a year’ from the time of the submission of the papers by the Foreign and Commonwealth Office into Libya”. There was also evidence before Teare J that the British Embassy in Tripoli had been closed since 2014, with operations moving temporarily to Tunisia, and that there was significant political instability in Libya.

16. The application to dispense with service was made to Teare J, in part at least, on the basis that there were two competing governments in Libya, the Tripoli-based Government of National Accord and the Tobruk-based House of Representatives, and that there was some room for doubt as to which of the rival Ministries of Foreign Affairs was the relevant institution for the purpose of section 12 SIA. Teare J referred to the fact that there were two entities claiming to be the government of Libya in his judgment. However, Males LJ recorded in his judgment (at para 3) that the Government of National Accord is the only government in Libya which is recognised by the United Kingdom, as well as by other States and international bodies, and that there is no doubt that the Ministry of Foreign Affairs in Tripoli is the relevant Ministry for the purpose of section 12 SIA. This has, therefore, not been a live issue in these proceedings.

17. The evidence before Males LJ on the application to set aside the order of Teare J in relation to service is summarised in the following paragraphs.

18. The second witness statement of Mr Brocklesby states that following the order of Teare J on 20 July 2018, General Dynamics took steps to notify Libya of the proceedings by delivering copies of the relevant documents by courier to the addresses in Tripoli referred to in the order. Courier delivery by DHL was attempted to each of the Tripoli addresses, twice to each, but proved unsuccessful. Delivery to each of the Tripoli addresses was then attempted on 19 and 20 September 2018 by former British Army personnel engaged by a private security company, instructed by General Dynamics, but this was unsuccessful, in part because of fighting in Tripoli and the Ministry of Foreign Affairs being subject to a police guard. However, on 23 September 2018 the agents successfully delivered the documents by hand to the Ministry of Foreign Affairs in Tripoli, but were unable to deliver the documents to the other address in Tripoli despite further attempts.

19.       On 19 September 2018 Libya issued its application to set aside the order of

20. The second witness statement of Mr Brocklesby states that on 10 October 2018 General Dynamics’ solicitors were told by the Foreign Process Office at the Royal Courts of Justice that the same “guideline timeframe” applied for service on Libya in accordance with section 12(1) SIA. On the same day, General Dynamics’s solicitors were told by Mr Batchelor of the Premium Service Legalisation Office at what is now the FCDO that service to the Ministry of Foreign Affairs in Libya was “not at all straightforward” and “not possible”, that the task was “too dangerous” and that he had heard that the relevant Ministry was or had been surrounded by a “militia guard” and that there was currently no British Embassy in Tripoli which impacted upon the prospects of successful service.

21. Mr Brocklesby’s evidence was that these communications with the FCDO took place against a background in which there was political instability in Libya as a result of conflict and violence between competing factions and that there were plans to hold nationwide elections in December 2018 but these were postponed following this violence.

22. Libya’s solicitors then made their own enquiries of the FCDO. The second witness statement of Mr Handley states that on 22 October 2018 they spoke to Mr Crook at the Premium Service Legalisation Office at the FCDO who explained the process by which documents for service are sent from the Foreign Process Office at the Royal Courts of Justice to the FCDO and how the FCDO assesses whether and if so when service can be effected. Mr Crook explained the process as follows:

(1) On receipt of the documents, the FCDO sends an “advanced notice email” of the claim to the local British embassy, consulate or High Commission (the “consular office”) “to ascertain whether the ‘situation on the ground’ is conducive to service of documents”. The consular office then reports back to the FCDO.

(2) The consular office report and the claim documents are sent to the relevant “FCO Geographical Department”. That Department “examines the Claim Documents and whether any sensitive circumstances, such as an election or a visit of the Foreign Minister of the State, are either pending or exist at the time”.

(3) The FCDO then decides either (a) to transmit the claim documents to the consular office; or (b) to delay the transmission of the documents; or (c) to return the documents.

(4) These “internal processes within the FCO can take some time and they will often constitute a significant portion of the entire period required to effect service.”

23. Mr Handley’s second witness statement states that Mr Crook also informed Libya’s solicitors that they had spoken to the “Libya Unit” within the FCDO on 4 September 2018 and that the Libya Unit had expressed the view that, since there was then a state of emergency in Tripoli, “it was not practical to forward documents on at that particular time”. However the Libya Unit had also informed Mr Crook that service “may be possible when the situation calms down” as the British Embassy still maintained diplomatic staff in Libya and that it was possible to arrange meetings with the Libyan Minister of Foreign Affairs.

24. Mr Handley’s second witness statement also stated that in a further telephone conversation on 25 October 2018, Mr Crook informed Libya’s solicitors that he had checked the situation in Libya with the relevant FCO Geographical Department and he had been told that the civil unrest in Tripoli “has now calmed down (at least temporarily)”. Mr Crook also confirmed that, although the British Embassy in Tripoli was officially closed, there were diplomatic staff there who would be able to deliver documents to the Ministry of Foreign Affairs in Libya.

25. General Dynamics then submitted further evidence in the third witness statement of Mr Brocklesby. He stated that the position in Tripoli fluctuated. While there were moments of relative calm, the position remained unpredictable. Examples of conflict and violence in Tripoli in October and November 2018 included the illegal use of force against private and public institutions, the bombing of hospitals, attacks against its international airport and militia in-fighting following a temporary ceasefire.

26. On 17 December 2018 Libya presented further evidence from the Twitter feed and the Facebook page of the British Embassy in Tripoli. These posts included a video taken on 10 December 2018 which was said to show the British Ambassador speaking to the camera from an outdoor location in Tripoli in front of the Libyan Ministry of Foreign Affairs.

27. Males LJ handed down his judgment on 18 January 2019. In his view (paras 84-89) the evidence before Teare J established that much of Libya was in a state of civil unrest and was violent and unstable, with armed militia groups active in the capital endangering civilian lives and safety, an atmosphere of persistent lawlessness and a real risk of a full-scale civil war. The British Embassy had closed, with diplomats moving to Tunisia, although visits to Libya were sometimes possible and some diplomatic staff remained in the country. There was at least uncertainty as to the time which would be required to effect service through the FCDO, assuming this was possible at all. There were some periods when it would have been dangerous to attempt to deliver documents to the Ministry of Foreign Affairs as a result, not only of the situation in Tripoli generally, but also of the presence of armed militia around the Ministry itself. Furthermore, events since the order of Teare J had demonstrated that these concerns were well-founded. There had been outbreaks of serious violence in Tripoli and the UN Support Mission in Libya had described Tripoli as being “on the brink of all-out war”. It remained unstable with the potential for further large-scale conflict. There had also been times when the situation had been calmer so that life had returned more or less to normal and that during such times delivery of documents to the Ministry of Foreign Affairs would have been possible. However, such times tended to be short lived and unpredictable in advance. The evidence suggested that the stated view of the FCDO was that service of documents on the Ministry in Libya was not at all straightforward, too dangerous and (assuming it to be possible at all) likely to take over a year. Accordingly, had Males LJ concluded that the court had power to dispense with service, he would have found that there were exceptional circumstances and would have exercised a discretion to do so.

28. By a letter dated 22 February 2019, General Dynamics’ solicitors notified Libya’s solicitors that General Dynamics was filing a request that day with the Foreign Process Office of the High Court to effect service of process on Libya in accordance with CPR rule 6.44. The notification was given without prejudice to General Dynamics’ appeal to the Court of Appeal.

29. On 3 July 2019 the Court of Appeal restored the order of Teare J dispensing with the need to serve the relevant documents. The Court of Appeal observed (at paras 3-4, 65-66, 69-70) that Libya was in turmoil. Armed militia groups were active in Tripoli endangering the lives and safety of civilians with a real risk of full-scale civil war. The view of the FCDO was that service of documents on the Ministry of Foreign Affairs was not straightforward, too dangerous and, even if possible at all, likely to take over a year. The Court agreed with Males LJ that, if there was a power to dispense with service in accordance with section 12(1) SIA, the exceptional circumstances justified the exercise of the discretion.

Issue 1: The scope and effect of section 12(1) SIA

30. The long title of the SIA states that it makes new provision with respect to proceedings in the United Kingdom by or against other States. Part I is entitled “Proceedings in United Kingdom by or against other States”. Section 1(1) confers on a State a general immunity from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of Part I. That immunity extends to both the adjudicative and enforcement jurisdiction of the courts. Sections 2 to 11 set out exceptions to the immunity from adjudicative jurisdiction, including in section 9 an exception in the case of certain proceedings which relate to arbitrations. Sections 13(2) to (6) and 14(3) and (4) address and establish exceptions to the immunity from enforcement jurisdiction. The present case does not directly concern immunity from adjudicative or enforcement jurisdiction. Sections 12 and 13 confer procedural privileges. Section 12 with which we are principally concerned in this appeal confers procedural privileges in respect of, in particular, service of process and judgments in default of appearance. It was common ground before us that section 12 is not confined to adjudicative jurisdiction but applies also to enforcement jurisdiction (Norsk Hydro ASA v State Property Fund of Ukraine (Note) [2002] EWHC 2120 (Comm); [2009] Bus LR 558, para 25 per Gross J; L v Y Regional Government of X [2015] EWHC 68 (Comm); [2015] 1 WLR 3948, para 38 per Hamblen J).

31. Section 12(1) provides that “any writ or other document required to be served for instituting proceedings against a State” shall be served by being transmitted through the FCDO to the Ministry of Foreign Affairs of the State. It also provides that service shall be deemed to have been effected when the writ or document is received at the Ministry. This provision does not prevent the service of a writ or other document in any manner to which the State has agreed (section 12(6)). The applicable procedural rules are set out at CPR rules 6.44 to 6.47. The claimant must file at the Central Office of the Royal Courts of Justice a request for service to be arranged by the FCDO and a copy of the claim form or other document. The Senior Master then sends the documents to the FCDO with a request that it should arrange for them to be served. The claimant is required to undertake to meet the expenses of the FCDO in effecting service. As it is intended that service should be effected on the defendant state by transmission to the Ministry of Foreign Affairs of that State, it is necessary to comply with any requirements for service out of the jurisdiction pursuant to CPR rules 6.36 and 6.37 (section 12(7)). Where permission to serve out of the jurisdiction is required the usual practice is for an application to be made to a Master, or in the Commercial Court to a judge of that court, without notice to the intended defendant state. (See Fox and Webb, The Law of State Immunity, 3rd ed (2015), pp 236-237.)

32. Section 12(6) provides that section 12(1) does not prevent the service of a writ or other document in any manner to which the State has agreed. CPR rule 6.44(7) provides that where section 12(6) applies and the State has agreed to a method of service other than through the FCDO, the claim form or other document may be served either by the method agreed or in accordance with CPR rule 6.44.

33. The role of the FCDO under section 12(1) is to act as a channel of communication. In his judgment in the present case, Males LJ stated (at para 29) that section 12 SIA “gives to the executive which is responsible for the conduct of this country’s international relations a legitimate role in deciding whether, when and how a foreign state should be made subject to the jurisdiction of the English courts”. This is a matter on which we invited written submissions from the parties following the hearing of the appeal. It may be that this observation was prompted by the evidence before the court, to which I have referred above, of statements attributed by Libya to Mr Crook of the Premium Service Legalisation Office of the FCDO, to the effect that the FCDO will ascertain whether the situation on the ground is conducive to service of documents, will examine the documents and whether any sensitive circumstances exist, and will then decide whether to transmit the claim documents, to delay their transmission or to return the documents. Even if the statements attributed to Mr Crook can be taken as an accurate statement of FCDO practice in this regard, I consider that the observation of Males LJ is far too broad and lacks any legal basis. Under section 12 SIA the FCDO is charged by Parliament with the responsibility of effecting service. It may encounter practical difficulties in effecting service, as may have occurred in the present case when an attempt was eventually made to serve via the FCDO. In such circumstances the FCDO will, no doubt, exercise its judgement, its expertise and its experience in deciding what may be attainable, and the time and manner in which it may be attainable. However, there is no general discretion in the FCDO to decline to effect service. This is a matter of great importance as a discretion of the breadth suggested by Males LJ would permit the obstruction by the executive of access to the courts. In my view, the FCDO is obliged to use its best endeavours to effect service in accordance with section 12.

34. The SIA provides in section 12(1) that service shall be deemed to have been effected when the writ or document is received at the Ministry of Foreign Affairs of the defendant state. (Differing views have been expressed at first instance as to what is meant by the writ or document having been “received” (Certain Underwriters at Lloyd’s of London v Syrian Arab Republic [2018] EWHC 385 (Comm), para 19 per Mr Andrew Henshaw QC, sitting as a judge of the High Court; Heiser (Estate of) v Islamic Republic of Iran [2019] EWHC 2074 (QB), para 235 per Stewart J; Unión Fenosa Gas SA v Egypt [2020] EWHC 1723 (Comm); [2020] 1 WLR 4732, para 90 per Jacobs J) but the issue has not been argued before us and it is not necessary to resolve it on this appeal.) A certificate by or on behalf of the Secretary of State for Foreign, Commonwealth and Development Affairs is conclusive evidence of whether, and if so when, a document has been served or received as mentioned in section 12(1) or (5) (section 21(d) SIA, CPR rule 6.44(5)).

35. The terms employed by section 12 SIA include those associated with the Rules of the Supreme Court as they existed at the time of the enactment of the statute in 1978. Subsection (1) refers to a writ and the following subsections also refer to entering an appearance and judgment in default of appearance, matters which have long been superseded in civil procedure in this jurisdiction. The interpretation section of the SIA provides in section 22(2) that references to entry of appearance and judgments in default of appearance include references to any corresponding procedures. The precise application of section 12 to more modern procedures has on occasion given rise to difficulty. (See Norsk Hydro; AIC Ltd v Federal Government of Nigeria [2003] EWHC 1357 (QB); 129 ILR 571, Fox and Webb, The Law of State Immunity, pp 234-235.) However, it was clearly not the legislative intention to limit the procedure for service under section 12(1) to cases involving the entry of appearance and possible judgments in default, or to corresponding procedures, as is demonstrated by the reference in section 12(1) to an “other document required to be served for instituting proceedings against a State”.

36. The rules of court governing the procedure for the enforcement of arbitration awards, including awards under the New York Convention, are contained in CPR rule 62.18. This provides that an application for permission under section 101 of the 1996 Act to enforce an award in the same manner as a judgment or order may be made without notice in an arbitration claim form (CPR rule 62.18(1)). The court may specify parties to the arbitration on whom the arbitration claim form must be served (CPR rule 62.18(2)). (CPR rule 62.3 provides that an arbitration claim must be started by the issue of an arbitration claim form in accordance with the Part VIII procedure. That provision does not apply directly to an application to enforce an award under the New York Convention (CPR rule 62.2(2)) but CPR rule 62.18(1) provides that such an application may be made without notice in an arbitration claim form.) However, CPR rule 62.18(7) provides that an order giving permission to enforce an award must be served on the defendant by delivering a copy to him personally or sending a copy to him at his usual or last known place of residence or business. Under CPR rule 62.18(8) an order giving permission to enforce an award may be served out of the jurisdiction without permission and in accordance with CPR rules 6.40 to 6.46 as if the order were an arbitration claim form. CPR rule 62.18(9) then provides that within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set, the defendant may apply to set aside the order and the award must not be enforced until after the end of that period or any application made by the defendant within that period has been finally disposed of. The rules referred to in CPR rule 6.18(8)(b) include CPR rule 6.44, considered above, which relates to service of a claim form or other document on a State and echoes section 12(1) SIA. If an application to set aside the order under CPR rule 62.18(9) is not made within the specified period, enforcement of an arbitration award is permitted against any property of the defendant state within the jurisdiction “which is for the time being in use or intended for use for commercial purposes” (sections 13(2)(b) and 13(4) SIA).

37. In the absence of an agreement within section 12(6) SIA, the procedure for service via the FCDO laid down in section 12(1) is, for proceedings within its scope, the exclusive and mandatory method for service on a foreign state (Fox and Webb, The Law of State Immunity p 236). In Westminster City Council v Government of the Islamic Republic of Iran [1986] 1 WLR 979; 108 ILR 557 Westminster sought to register land charges under the Land Registration Act 1925 against former embassy premises of Iran. Westminster took out an originating summons naming as defendant the government of Iran, whose solicitors declined to accept service. Peter Gibson J considered that the originating summons was a document required to be served for instituting proceedings against a State within section 12(1). He went on to observe (at p 982G-H):

“It is true that the Chief Land Registrar by his order was not insisting on an originating summons and that any other appropriate originating process could have been used … But whatever originating process was chosen, it must have been envisaged that the city council would be instituting proceedings as plaintiff and the only other known interested party, the Iranian government, would be defendant, and that by analogy with rule 300 of the Land Registration Rules 1925 the Iranian government would be served with the proceedings, so that it could participate in the hearing before the court. It seems to me, therefore, that the wording of the opening words of section 12(1) of the State Immunity Act 1978 is satisfied in the present case.”

The judge further considered (at p 984A-D) that, notwithstanding the fact that in the exceptional circumstances then prevailing service in conformity with section 12(1) was or might be impractical, he could not rule on the question referred to the court without prior service on the Iranian government in accordance with the section 12(1) procedure.

38. Similarly, in Kuwait Airways Corpn v Iraqi Airways Co [1995] 1 WLR 1147 the necessary documents for service on Iraq had been lodged at the Central Office and were sent by the Senior Master to the Secretary of State for Foreign Affairs for service in accordance with section 12(1). A letter from the FCO was sent to the Iraqi Embassy enclosing the writ and stating that, as HM Government had no representation in Iraq at that time, the FCO would be grateful if the documents could be forwarded to the Ministry of Foreign Affairs in Baghdad. The documents were received at the Embassy by Mr Ibrahim, an accredited diplomat, who did not attempt to forward to Baghdad the documents received from the FCO. A submission that service of the writ on the Iraqi Embassy was essentially service on the Iraqi Ministry of Foreign Affairs for the purpose of section 12(1) was rejected at first instance by Evans J (HC, 16 April 1992; unreported). In his view the requirement of service “at” not merely “on” the Foreign Ministry of the defendant state was required by the plain words of the subsection. Evans J cited with approval a passage from Lewis, State and Diplomatic Immunity, 3rd ed (1990), pp 78-79 which read:

“9.7 … It would have been possible to provide for service within the jurisdiction on the Embassy, on the analogy of a foreign company carrying on business within the jurisdiction … However, it was no doubt considered more diplomatic that the foreign sovereign should not, by reason merely of his mission’s presence here for the purpose of diplomatic intercourse between the two countries, be deemed to have a legal presence within the jurisdiction.”

The decision of Evans J on this point was upheld by the House of Lords. Lord Goff of Chieveley (at pp 1155F-1156D) considered that the delivery of the writ by the FCO to the Embassy was at best a request to the Embassy to forward the writ on behalf of the FCO to the Iraqi Ministry of Foreign Affairs. On the evidence that was not done. It followed that service of the writ on Iraq was never effected in accordance with section 12(1). (See also European Union v Syrian Arab Republic [2018] EWHC 181 (Comm), Teare J; Certain Underwriters at Lloyd’s of London v Syrian Arab Republic, Mr Andrew Henshaw QC.)

39. A key question in the present appeal is whether proceedings to enforce an arbitration award under the New York Convention fall within the scope of section 12(1) SIA. This is to be decided having regard to the ordinary meaning of the statutory provision, its purpose and its legal context, including considerations of international law and comity.

40. On behalf of the respondent Mr Daniel Toledano QC submits that the present proceedings do not fall within the scope of section 12(1). That section applies only to service of a writ “or other document required to be served for instituting proceedings against a State”. In his submission it has no application here because the document which initiates the proceedings (the application for permission to enforce the arbitration award) is not required to be served and the document which is required to be served (the order giving permission to enforce the award) does not initiate the proceedings. It is said that there was no obligation to serve notice of the application; under the CPR the court has the power to order service of notice of the application but it did not do so in this case. Furthermore, it is said that while under the CPR there is a requirement to serve the order, the proceedings had already been instituted. I would accept that, if the matter is viewed solely in terms of our procedural law, proceedings are instituted as a result of the issue of the arbitration claim form. However, a defendant state, although aware of the arbitration award, will normally be unaware of the attempt to enforce the award against it in the jurisdiction in question until it is given notice of the proceedings and so, from its point of view the proceedings are only instituted against it once the order is served.

41. One possible response to the respondent’s submission is a narrow one founded on the procedural rules. A claimant may issue an arbitration claim form but need not serve this on the defendant state unless the court so orders. The application is usually determined without giving notice to the defendant, but the resulting order must be served on the defendant (CPR rule 62.18(7)) and the award must not be enforced until the defendant has had the opportunity to apply to set it aside (CPR rule 62.18(9)). Service out of the jurisdiction is required by CPR rule 62.18(8)(b) to be in accordance with CPR rules 6.40-6.46 which includes CPR rule 6.44 which deals with service on a State and provides for service through the FCDO and which echoes section 12 SIA. The procedure by which proceedings are instituted therefore involves two stages: first, the application for permission to enforce the arbitration award which may be made without notice in an arbitration claim form and, secondly, the court order giving such permission which must be served on the defendant. The order falls naturally within the words “other document required to be served for instituting proceedings against a State” in section 12(1).

42. There is, however, a more fundamental objection to the respondent’s submission concerning the meaning of the words “other document required to be served for instituting proceedings against a State” in section 12(1). On behalf of the respondent it is submitted that these words direct one to the procedural rules in the CPR in order to determine whether there is a requirement that any given document be served. On this reading the content of the obligation to effect service in accordance with section 12(1) is delegated to the Rules Committee and will vary over time as procedural rules are amended. There is, however, nothing in the provision which indicates an intention to confer such a power on the Rules Committee. On behalf of the appellant it is submitted that this is far too narrow a perspective and it is submitted that the wording of section 12(1) reflects the fact that there will always be some document which is required to be served for instituting proceedings against a State.

43. The exercise of jurisdiction by the courts of one State over another State is an act of sovereignty. The institution of such proceedings necessarily requires that the defendant state should be given notice of the proceedings. The service of process on a State in itself involves an exercise of sovereignty and gives rise to particular sensibilities. Section 12 is intended to create a procedure whereby service may be effected on a State, in the interests of both parties and in a manner which accords with the requirements of international law and comity. These considerations suggest that a broad reading of section 12(1) is appropriate. The words “other document required to be served for instituting proceedings against a State” in section 12(1) are wide enough to apply to all documents by which notice of proceedings in this jurisdiction is given to a defendant state, subject only to section 12(6). Any narrower reading would necessarily exclude certain proceedings against a State with the result that in such cases no provision would be made in the SIA for notifying a defendant state of the initiation of proceedings against it.

44. In the particular context of enforcement of arbitration awards against a State, an application may be made to the court without notice (with or without issuing an arbitration claim form), in accordance with CPR rule 62.18(1), for permission to enforce. Although the court may order service of the arbitration claim form (CPR rule 62.18(2)) this is not usually required. However, under CPR rule 62.18(7) the resulting order giving permission to enforce must be served on the defendant state which may then apply under CPR rule 62.18(9) to set aside the order. If the order giving permission were not served, the defendant state may well be unaware of the enforcement proceedings and may not have the opportunity to assert immunity from enforcement before an attempt is made to attach or to seize the State’s assets within the jurisdiction. As Lord Sumption explained in a different context in Barton v Wright Hassall LLP [2018] 1 WLR 1119 (at para 16), although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules must identify the precise point from which time runs for the purpose of taking further steps. Having regard to this particular procedure, there is force in the conclusion of Males LJ in the present case (at para 78) that, in the case of proceedings to enforce an arbitration award under section 101 of the 1996 Act, a document is required for instituting proceedings against a State. That document is the arbitration claim form in a case where the court requires the claim form to be served but if it does not so require it is the order granting permission to enforce the award. In either case the document is a “document required to be served for instituting proceedings against a State” and must be served in accordance with section 12(1) SIA.

The European Convention on State Immunity

45. One reason for the enactment of the SIA was to permit the United Kingdom to become a party to the European Convention on State Immunity, Basle, 16 May 1972, ETS No 74 (“the ECSI”), a Council of Europe Convention. Section 12 SIA has its origin in article 16 of the ECSI which provides:

“Article 16

1. In proceedings against a contracting state in a court of another contracting state, the following rules shall apply.

2.         The competent authorities of the State of the forum shall

transmit

- the original or a copy of the document by which the proceedings are instituted;

- a copy of any judgment given by default against a State which was defendant in the proceedings,

through the diplomatic channel to the Ministry of Foreign Affairs of the defendant state, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant state.

3. Service of the documents referred to in paragraph 2 is

deemed to have been effected by their receipt by the Ministry
of Foreign Affairs.

4. The time-limits within which the State must enter an appearance or appeal against any judgment given by default shall begin to run two months after the date on which the document by which the proceedings were instituted or the copy of the judgment is received by the Ministry of Foreign Affairs.

5. If it rests with the court to prescribe the time-limits for entering an appearance or for appealing against a judgment given by default, the court shall allow the State not less than two months after the date on which the document by which the proceedings are instituted or the copy of the judgment is received by the Ministry of Foreign Affairs.

6. A contracting state which appears in the proceedings is deemed to have waived any objection to the method of service.

7. If the contracting state has not appeared, judgment by default may be given against it only if it is established that the document by which the proceedings were instituted has been transmitted in conformity with paragraph 2, and that the time- limits for entering an appearance provided for in paragraphs 4 and 5 have been observed.”

46. The Explanatory Report to the ECSI states that article 16 safeguards the interests of both parties by providing that transmission of the most important documents to the Foreign Ministry of the defendant state constitutes effective service and by ensuring adequate time-limits (para 58). It also states that the procedural concepts referred to in article 16 (in particular “the document by which the proceedings are instituted” and “judgment by default”) are to be given the meaning they have in the lex fori, as it was not possible to reach unification of practice or even common definitions on this point (para 60).

47. The Explanatory Report states (at para 59) that it was originally thought that provision should be made for documents instituting proceedings to be transmitted to the Foreign Ministry of the defendant state through the diplomatic channels of that State. It observes that although this practice will probably be adopted in the large majority of cases, article 16 does not specifically mention diplomatic channels, as relations between member states of the Council of Europe are not always conducted through these channels. This note is slightly curious because article 16(2) does provide that the relevant documents shall be transmitted “through the diplomatic channel to the Ministry of Foreign Affairs of the defendant state”. However, article 16(2) does not impose any obligation to use the diplomatic channels of the defendant state. This might well be thought inappropriate, for example in circumstances where the defendant state may wish to avoid service. It should be noted that section 12(1) SIA, by contrast, makes clear that the channel of communication is to be through the FCDO to the Ministry of Foreign Affairs of the defendant state. The Explanatory Note also observes (at para 60) that the Foreign Ministry is obliged to accept writs served on it even if it believes that the proceedings brought against the State are unjustified, that the court is not competent to entertain the proceedings, or that the defendant state may claim immunity.

48. A significant difference between the SIA and the ECSI is that the latter does not permit measures of execution against the property of a State “except where and to the extent that the State has expressly consented thereto in writing in any particular case” (article 23). In particular, the Explanatory Report on the ECSI states (at para 51) in relation to article 12 (which relates to disputes subject to arbitration) that “[i]t should be made clear that proceedings concerned with the enforcement of arbitral awards are outside the scope of the Convention and governed by domestic law and any international convention which may be applicable”. It appears therefore that article 16 is not concerned with proceedings in connection with the enforcement of arbitral awards. By contrast section 13 SIA makes express provision for enforcement proceedings against States and section 13(4) expressly permits execution for the enforcement of an arbitral award against the property of a State which is in use or intended for use for commercial purposes. (See also Van Zyl v Kingdom of Lesotho [2017] SGHC 104; [2017] 4 SLR 849 at paras 38-40 where Kannan Ramesh J suggests that the interpretation provisions in section 22(2) SIA were calibrated to cover, inter alia, the introduction of enforcement proceedings for arbitral awards in the SIA.)

International law and comity

49. On behalf of Libya, Mr Matovu QC submits that there exists a rule of customary international law to the effect that, whenever a State is directly impleaded before the courts of another State, service of documents instituting the proceedings must be effected through the diplomatic channel or in a manner agreed to by the defendant state. This submission is founded essentially on article 22 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004 (“UNCSI”) which provides:

“1. Service of process by writ or other document instituting a proceeding against a State shall be effected:

(a) in accordance with any applicable international

convention binding on the State of the forum and the
State concerned; or

(b) in accordance with any special arrangement for

service between the claimant and the State concerned, if
not precluded by the law of the State of the forum; or

(c)	in the absence of such a convention or special

arrangement:

(i) by transmission through diplomatic

channels to the Ministry of Foreign Affairs of the
State concerned; or

(ii) by any other means accepted by the State

concerned, if not precluded by the law of the
State of the forum.

2. Service of process referred to in paragraph 1(c)(i) is

deemed to have been effected by receipt of the documents by
the Ministry of Foreign Affairs.

3. These documents shall be accompanied, if necessary, by

a translation into the official language, or one of the official
languages, of the State concerned.

4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.”

50. The UNCSI is yet to enter into force. It requires 30 ratifications before it can come into force. As at the date of this judgment, it has been signed by 28 States but only 22 States are parties. The United Kingdom has signed the UNCSI but has not yet ratified it; Libya has done neither. Certain of its provisions may, nevertheless represent rules of customary international law binding generally on all States. It is possible to point to some general statements in the authorities supportive of the view that particular provisions of the UNCSI reflect the state of customary international law on state immunity. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) [2006] UKHL 26; [2007] 1 AC 270, Lord Bingham of Cornhill observed (at para 26) that the UNCSI was, despite its embryonic status, “the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases”. Similarly, Lord Hoffmann observed (at para 47) that UNCSI was “the result of many years work by the International Law Commission [“ILC”] and codifies the law of state immunity”. It is, however, necessary to approach these statements with some caution. In Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99 the International Court of Justice noted (at paras 54- 55) that the UNCSI was not yet in force and that, as a result, it was necessary to identify customary international law according to the ordinary rules. The court further observed (at para 66) that the provisions of UNCSI were relevant only in so far as they shed light on the content of customary international law. As a result, it is necessary to examine each provision of the UNCSI in order to assess whether it does reflect customary international law. As Lord Sumption observed in Benkharbouche v Embassy of the Republic of Sudan (Secretary of State for Foreign and Commonwealth Affairs intervening) [2017] UKSC 62; [2019] AC 777, para 32:

“Like most multilateral conventions, its provisions are based partly on existing customary rules of general acceptance and partly on the resolution of points on which practice and opinion had previously been diverse. It is therefore necessary to distinguish between those provisions of the Convention which were essentially declaratory and those which were legislative in the sense that they sought to resolve differences rather than to recognise existing consensus. That exercise would inevitably require one to ascertain how customary law stood before the treaty.”

(See, also, Belhaj v Straw (United Nations Special Rapporteur on Torture intervening) [2017] UKSC 3; [2017] AC 964, para 25 per Lord Mance; Boru Hatlari Ile Petrol Tasima AS v Tepe Insaat Sanayii AS [2018] UKPC 31, para 25 per Lord Mance; Webb, “International Law and Restraints on the Exercise of Jurisdiction by National Courts of States”, in Evans (ed), International Law, 5th ed (2018), pp 319- 323.)

51. In order to demonstrate the existence of such a rule of customary law it would be necessary for Libya to establish both widespread, representative and consistent State practice and an acceptance by States that the practice is followed as a matter of legal obligation (opinio juris). (North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3, para 77; Military and paramilitary activities in and against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14; Jennings and Watts, Oppenheim’s International Law: vol 1, 9th ed, pp 25-36.) I am unable to accept that the rule for which Libya contends is a rule of customary international law. I propose to deal with this relatively briefly because in my view it is not decisive of the outcome of this appeal.

52. In my view, the rule set out in article 22 UNCSI is clearly not declaratory of pre-existing customary international law. The UNCSI originated in the work of the ILC which had been given the task of codifying and gradually developing international law in matters of jurisdictional immunities of States and their property and was elaborated by an Ad Hoc Committee reporting to the Sixth Committee of the UN General Assembly. Stewart, in a commentary on the new Convention observed that in the absence of an agreed international scheme, the requirements and methods for valid service of process on foreign governments had been left to domestic law and the rules consequently differed significantly from State to State. The Convention was the first multilateral instrument to address these issues in the specific context of sovereign suits (Stewart, “The UN Convention on Jurisdictional Immunities of States and their Property”, (2005) 99 AJIL 194, 207-8). The travaux préparatoires of the UNCSI demonstrate that article 22 was not intended to be declaratory of customary international law but was, rather, legislative in character, attempting to resolve disparate State practice. The rules for service initially proposed by Special Rapporteur Sucharitkul were permissive not mandatory in character (ILC Yearbook 1986 vol II(1), p 31). When the Drafting Committee of the ILC adopted a mandatory rule the methods of service were expanded and included in a hierarchical list service “by transmission by registered mail … or … by any other means” if permitted by the law of the forum and the law of the defendant state. The variety of means was intended to ensure “the widest possible flexibility, while protecting the interests of the parties concerned” (ILC Yearbook 1986 vol II(2), p 20). This version was adopted by the ILC on first reading in 1986. When submissions on the draft were requested the German Democratic Republic was the only State which considered that service should be only by diplomatic channels. Provision for service by a variety of means remained in the draft article until it was amended by Special Rapporteur Ogiso in 1990 to require service in accordance with international conventions or by diplomatic channels (ILC Yearbook 1990 vol II(1), p 20). The draft article adopted on second reading in 1991 was a compromise between the version from the first reading in 1986 and the stricter approach favoured by the Special Rapporteur in 1990. The article proposed “a middle ground so as to protect the interests of the defendant state and those of the individual plaintiff”. (ILC Yearbook 1991 vol II(2), pp 59-60). (Gazzini in O’Keefe and Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property, A Commentary, pp 348-350).

220. In Gold Reserve Inc v Bolivarian Republic of Venezuela [2016] EWHC 153 (Comm); [2016] 1 WLR 2829 the claimant applied to enforce a New York Convention arbitration award. The order giving permission to enforce the award was served in accordance with section 12(1) but the arbitration claim form was not. Venezuela applied to set aside the order giving permission, inter alia, on the ground that the arbitration claim form should have been served in accordance with section 12(1). Teare J stated (at para 64):

“[Section 12(1)] only applies to writs or other documents ‘required to be served’. If the document instituting the proceedings is not required to be served then the subsection has no application.”

That construction is consistent with the decision of the Court of Appeal in this case.

221. Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 concerned proceedings initiated in Australia by Firebird under Part 2 of the Foreign Judgments Act 1991 to register in Australia a judgment which it had obtained in the Tokyo District Court in the sum of ¥1,300m together with interest and costs against the Republic of Nauru (“Nauru”) (“the foreign judgment”). The summons for the order for registration was not served on Nauru and the application was heard ex parte. Firebird obtained an order that the foreign judgment be registered. The order for registration stated the period within which Nauru could apply to have the registration of the foreign judgment set aside. Service of the order for registration was effected in accordance with the Uniform Civil Procedure Rules 2005 (NSW), which provide for leave to serve outside Australia. Orders were made granting leave to serve the notice of registration outside Australia and on the Secretary for Justice of the Republic of Nauru. In this way service of the notice of registration was effected outside Australia after the order for registration was made. After the time permitted to apply to set the registration aside had expired Firebird obtained a garnishee order against Nauru’s assets. Nauru applied to set aside the registration of the foreign judgment and the garnishee order.

222. The statutory provisions in Australia as to state immunity and as to service on foreign states are contained in the Foreign States Immunities Act 1985 (“the Immunities Act”). Section 9 in Part II provides for general immunity, as follows “Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding” (emphasis added). Part III of the Immunities Act deals with service and judgments. Section 23 provides that “Service of initiating process on a foreign State … may be effected in accordance with an agreement (wherever made and whether made before or after the commencement of this Act) to which the State or entity is a party” (emphasis added). Section 24(1) provides that “Initiating process that is to be served on a foreign state may be delivered to the Attorney General for transmission by the Department of Foreign Affairs to the department or organ of the foreign state that is equivalent to that Department” (emphasis added). However, the permissive language, which I have emphasised in sections 23 and 24 is controlled by section 25 which provides that “Purported service of an initiating process upon a foreign State in Australia otherwise than as allowed or provided by section 23 or 24 is ineffective” (emphasis added). Accordingly, for the service of an initiating process in Australia, there must be compliance with the method of service in either section 23 or section 24. In addition section 27(1), in so far as relevant, provides that “A judgment in default of appearance shall not be entered against a foreign state unless: (a) it is proved that service of the initiating process was effected in accordance with this Act and that the time for appearance has expired; and (b) …” (emphasis added).

223.     I set out some of the issues which arose before the High Court of Australia in

this case.

224. First it was contended by Firebird that Nauru was not entitled to immunity under the Immunities Act as a proceeding for registration and enforcement of a foreign judgment is not a “proceeding” within the meaning of that term in section 9. French C J and Kiefel J, in a joint judgment, held that the term “proceeding” in section 9 “is apt to refer to any application to a court in its civil jurisdiction for its intervention or action; that is, some method permitted by law for moving a court to do some act according to law” (see para 36). They concluded that an application for registration of a foreign judgment is a “proceeding” within the meaning of section 9 (see para 49). Nettle J and Gordon J, in their joint judgment, also rejected Firebird’s contention (see para 185). Hamblen J had arrived at a similar conclusion in L v Y Regional Government of X. In this appeal it is accepted that an application to register the award is a “proceeding” within section 12(1) SIA 1978. That is not the issue on this appeal.

225. Second it was contended, and the Court of Appeal had held, that Firebird was required to serve Nauru before applying to register the foreign judgment under the Foreign Judgments Act. Firebird challenged that conclusion on the basis that the application for registration was ordinarily ex parte so that there was no obligation to serve on Nauru. Furthermore, that the only obligation of service imposed by the Immunities Act was under section 27 in relation to judgments in default of appearance and it was contended by Firebird that the registration of a foreign judgment was not a judgment in default of appearance.

226. The High Court held that sections 23 and 24 are concerned with methods of service and not when it is to be effected (see para 94). The application to register the Japanese judgment was ordinarily ex parte so there was no requirement to serve Nauru prior to registration of the Japanese judgment. I consider that a similar analysis can be adopted in relation to section 12 SIA 1978 so that service is only required to be effected if there is a document which is both (a) required to be served and (b) which institutes proceedings. The High Court also held that the registration of a foreign judgment was not a judgment in default of appearance which conclusion applies with equal force to the reference to a judgment in default of appearance in section 12(4) SIA 1978.

227. The High Court’s decision in relation to this issue is also instructive in relation to the observations as to the power to require service of an application which ordinarily is made ex parte. Nettle J and Gordon J observed at para 216 that an Australian court could require service of the summons to register the foreign judgment before proceeding to registration where that is considered to be expedient. Similar observations were made by French CJ and Kiefel J at para 90. I consider that the consequence of requiring service of the application to register the foreign judgment would be that service would then have to be effected in accordance with either section 23 or section 24 of the Immunities Act. However, as Nettle J and Gordon J also observed this ability to require service meant that appropriate orders could be made depending on the particular circumstances of the individual case. They stated at para 216:

“the rules in this respect are facultative. They enable appropriate orders for service to be made according to the facts and circumstances of each case, rather than imposing an inevitable and ineluctable service requirement regardless of the facts and circumstances of the case.”

I consider that the rules in this jurisdiction are also facultative enabling justice to be done to accommodate any sensitivities as to service on States but without permitting a particular State to obtain de facto immunity by the simple expedient of being obstructive about service. The SIA 1978 should not be a charter for injustice but rather judicial discretions should be exercised in a way that accommodates potential sensitivities.

228. Third Nauru contended that service of the registration order should have been in accordance with section 23 or section 24 so that service out of Australia was ineffective in accordance with section 25. However, the High Court (Gageler J dissenting) held that section 25 only made purported service in Australia ineffective so that Nauru had been effectively served outside Australia. There had been no challenge to the grounds upon which service outside Australia had been ordered and I consider that this aspect of the High Court’s decision demonstrates that procedural rules, such as permitting service outside the jurisdiction, can be utilised to enable justice to be done in the circumstances of an individual case.

229. Van Zyl v Kingdom of Lesotho [2017] SGHC 104; [2017] 4 SLR 849 concerned the provisions of the Singapore State Immunity Act (Chapter 313, 2014 Rev Ed) which was closely modelled on the SIA 1978 and rules of court which the judge noted were not different in any meaningful manner from those in England and Wales. The registrar had refused permission to serve a leave order to enforce an arbitral award against Lesotho by means of substituted service, on the ground that service had to be effected through the Ministry of Foreign Affairs in accordance with section 14 of the Singapore Act, which is materially identical to section 12(1) SIA 1978. Kannan Ramesh J dismissed the appeal. The judge started his analysis with the proposition at para 14 that:

“The position in the UK, as shown by the authorities, is that an order granting permission to enforce an arbitral award (‘a permission order’) must comply with the procedure in section 12 of the UK Act. The appellants accepted, correctly in my view, that the position in the UK was correct based on the statutory and procedural framework there.”

On that basis the judge considered that the “The question was whether the same construction applies in Singapore”. I consider that it is illogical to rely on Van Zyl as authority for the appellant’s construction of section 12 SIA 1978, on the basis of the construction of the equivalent Singaporean provision, if the judge’s starting point as to the position in the United Kingdom was wrong, which I consider it to have been.

230. This review of the authorities does not reveal any principled reason for concluding that first issue should be decided in favour of the appellant.

231. The Court of Appeal at para 71 set aside the order of Males LJ and restored

the order of Teare J. I would dismiss the appeal in relation to the first issue thereby
affirming the outcome in the Court of Appeal.

8.         The second issue

232. The second issue is in determining whether a document is “required to be served” so as to fall within section 12(1) SIA 1978, does the court take into account any order to require service under CPR rule 62.18(2) or dispense with service under CPR rules 6.16 and 6.28 so that, for instance if an order was made dispensing with service, then the document would no longer fall within section 12(1) so that it would not have to be transmitted by the FCDO to the Ministry of Foreign Affairs of the State.

233. In view of my conclusion in relation to the first issue it is not necessary to decide the second issue in order to determine this appeal. However, as the second issue has been fully argued and it may impact on enforcement proceedings in this case, I consider it appropriate to express my views in relation to it albeit on an obiter basis.

234. Section 12 SIA 1978 deliberately incorporates domestic procedural law. Part of the historical context was the state of the procedural law before the SIA 1978. In 1978 in England and Wales there was an ability to require service under Order 71 rule 2(1), Order 73 rule 8 and (from 1 September 1978) under the new Order 73 rules 10. There were similar provisions in Northern Ireland. So, a part of the historical context to section 12 was that in the exercise of discretion a court could require service of a document instituting proceedings in what would otherwise have been a without notice application. The document would then be “required to be served” and section 12 would require diplomatic service. This does not alter the law. Section 12 remains unaltered. Rather, it gives effect to the legislation which incorporates domestic procedural rules and makes its operation dependent on them. I consider that if discretion is exercised so that the arbitration claim form is required to be served then it would then fall within section 12(1).

235. In 1978 there was no procedural rule in England and Wales which permitted the court to dispense with service of a writ or other document instituting proceedings. It can be seen that the historical context to section 12 did not include a court exercising discretion not to require service of a document instituting proceedings. However, as I have set out at paras 167-177 above another part of the historical context to the SIA 1978 was that it was obvious that domestic procedural rules could be changed. Accordingly, by incorporating procedural rules into section 12(1) SIA 1978 it is a certainty that Parliament’s policy or intention was to allow for a construction that continuously updates the operation of section 12 by reference to domestic procedural changes since SIA 1978 was initially framed.

236. In accordance with procedural rules in England and Wales discretion can now be exercised to dispense with service. CPR rule 6.16 under the rubric of “Power of court to dispense with service of the claim form” provides that “(1) The court may dispense with service of a claim form in exceptional circumstances” (emphasis added). Paragraph (2) provides that “An application for an order to dispense with service may be made at any time and - (a) must be supported by evidence; and (b) may be made without notice.” CPR rule 6.28 applies in relation to documents other than claim forms. Under the rubric “Power to dispense with service” paragraph (1) provides that “The court may dispense with service of any document which is to be served in the proceedings.” There is no requirement of “exceptional circumstances”. Paragraph (2) provides that “An application for an order to dispense with service must be supported by evidence and may be made without notice.”

237. The Court of Appeal at para 61 held that the judge was correct to apply the test of exceptional circumstances to the question of dispensing with service of the enforcement order on a foreign state. Strictly speaking the enforcement order falls within CPR rule 6.28, being a document other than a claim form so that exceptional circumstances are not required under the rules. However, principles of international comity justify the adoption of the test of exceptional circumstances.

238. I consider that if discretion is exercised to dispense with service then the document is no longer “required to be served”. It would then not fall within section 12(1). That is not to alter the law. Section 12 remains unaltered. Rather, it gives effect to the legislation which requires the operation of section 12 by reference to domestic procedural law including the procedural changes which have occurred since SIA 1978 was initially framed.

239. I also consider that such an interpretation gives effect to the legislative purpose by facilitating the restrictive doctrine of state immunity which requires access to justice in circumstances, for instance where, as here the documents have been received by the appellant, no harm or prejudice has been caused to the appellant but rather the appellant is intent on evading its legal obligations by any available means. This interpretation is also consistent with the principle of international comity as to the friendly waiver of technicalities.

9.         The third issue

240. The third issue on this appeal is whether section 12(1) SIA 1978 must be construed, pursuant to section 3 of the HRA 1998 and/or common law principles, as allowing in exceptional circumstances directions as to service not involving transmission by the FCDO to the Ministry of Foreign Affairs of the State, where a claimant’s right of access to the court would otherwise be infringed.

241. Again, in view of my conclusion in relation to the first issue it is not necessary to decide the third issue in order to determine this appeal. However, as the third issue has been fully argued and the concepts of access to justice overlap with those in relation to the restrictive doctrine of state immunity I consider it appropriate to express short views in relation to it, albeit on an obiter basis.

242. There are exceptions to the common law principle of access to justice but none of those exceptions apply in this case which is concerned with procedural rules enabling access to a court rather than the substantive rules for determining, for instance whether there is state immunity. In order to determine whether there is state immunity one first has to be able to bring a claim before a court.

243. Article 6 ECHR provides that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 6 is an important part of the ECHR. It is implicit in article 6 ECHR that for civil rights and obligations to be determined at a fair and public hearing before an independent and impartial tribunal, that a litigant will be allowed access to that tribunal in order to determine his claim, see Golder v United Kingdom (1975) 1 EHRR 524. Nor is the article 6 right of access to a court absolute. Restrictions may be permissible “if they pursue a legitimate objective by proportionate means and do not impair the essence of the claimant’s right”: see Benkharbouche at para 14 relying on Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. In this case the legitimate aim is said to be the doctrine of state immunity which doctrine “pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty”: see Al-Adsani at para 54. It is clear that if there is state immunity then there would be a proportionate restriction on the right of access to a court as embodied in article 6(1). However, in this case there is no question as to state immunity in relation to the enforcement order, see Svenska. The only question as to state immunity that will arise is under section 13(4) SIA 1978. Furthermore, the question here is an anterior one. How can there be an adjudication as to whether there is state immunity unless there is access to a court in circumstances where diplomatic service is impossible or unduly difficult? Denying access to a court in such circumstances would not be proportionate to the legitimate aim. If it had been necessary I would have interpreted section 12(1) SIA 1978 as allowing in exceptional circumstances directions as to service not involving transmission by the FCDO to the Ministry of Foreign Affairs of the State, where a claimant’s right of access to the court would otherwise be infringed.

10.       Overall conclusion

244. I would dismiss the appeal in relation to the first issue thereby affirming the

outcome in the Court of Appeal which was to set aside the order of Males LJ and to
restore the order of Teare J.

JUDGMENT

General Dynamics United Kingdom Ltd

(Respondent) v State of Libya (Appellant)

before

Lord Lloyd-Jones

Lord Briggs Lady Arden

Lord Burrows Lord Stephens

JUDGMENT GIVEN ON

25 June 2021

Heard on 15 December 2020