Service of an arbitration claim form and the State Immunity Act
An arbitration tribunal ordered the defendant (the government of a federal region with sovereign powers) to pay the claimant USD 100 million. When the defendant did not comply, the claimant applied to court pursuant to section 42 of the Arbitration Act 1996 to enforce the order. The claimant was given permission to serve the arbitration claim form on the defendant’s solicitors. The defendant applied to set aside that order on the basis that service should be carried out in accordance with the State Immunity Act 1978 (“SIA”) instead. This provides that any writ or other document “instituting proceedings” must be served through the Foreign and Commonwealth Office.
Hamblen J held that the arbitration claim form did “institute proceedings”: “Although the proceedings thereby instituted may be ancillary to existing arbitration proceedings they are nevertheless distinct proceedings brought in Court for the purpose of invoking the powers of and obtaining an order from the Court. The arbitration claim form is the document which institutes those proceedings”.
Section 12(6) of the SIA provides that the claim form can be served in any other manner to which the State has agreed. Here, the defendant’s solicitors had confirmed they were instructed to represent the defendant “in this arbitration” and that communications should be sent to them. The judge held that this authorisation covered only the arbitration and did not extend to service of documents relating to court proceedings connected with the arbitration. Section 12(3) of the SIA provides that a state “which appears in proceedings” cannot thereafter object that the service requirements of the SIA were not complied with. Hamblen J noted that defendants now enter an appearance by filing an acknowledgment of service. Although an acknowledgment of service was filed here, the defendant had also applied to dispute the court’s jurisdiction and hence it could still insist on service in accordance with the SIA. Accordingly, the order was set aside.