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

The appeal concerned the method of service of an order granting permission to enforce an arbitral award against a foreign state. The appeal was heard by the Supreme Court and the decision of the Court of Appeal was affirmed. The appeal involved three issues. The first was whether section 12(1) of the State Immunity Act 1978 required service of a document on a foreign state by transmission through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the defendant state. In particular, was 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) of the State Immunity Act 1978. The second was whether, in exceptional circumstances, the court was able, pursuant to Civil Procedure Rule 6.16 and/or 6.28, to dispense with service of the enforcement order, notwithstanding that section 12(1) applied. The third was whether section 12(1) of the State Immunity Act 1978 had to be construed, pursuant to section 3 of the Human Rights Act 1998 and/or common law principles, 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 would otherwise be infringed. The Court concluded that the arbitration claim form or the enforcement order was a “writ or other document required to be served for instituting proceedings against a State” within the meaning of section 12(1) of the State Immunity Act 1978. It followed that, in the absence of agreement by the defendant state to a different method of service, service had to be effected in accordance with section 12(1). The court concluded that if discretion was exercised to dispense with service, then the document would no longer be “required to be served” and it would not fall within section 12(1). It concluded that it was not necessary to decide the third issue in order to determine this appeal, but on an obiter basis that the Human Rights Act 1998 and/or common law principles did not require the construction of section 12(1) as implicitly allowing alternative directions as to service in exceptional circumstances where a claimant’s right of access to the court would otherwise be infringed.