http://www.bailii.org/ew/cases/EWHC/Comm/2016/153.html

One of the issues raised in this case was whether the claimant should have served an arbitration claim form on the defendant, the Republic of Venezuela. Section 12(1) of the State Immunity Act 1978 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 Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State…"

The arbitration claim in this case was instituted by the issue of an arbitration claim form but it was never served because the claimant was relying on CPR r62.18. This provides that an application for permission to enforce an award in the same manner as a judgment (as was the case here) may be made without notice in an arbitration claim form. The rule further provides that the order giving permission must then be served on the defendant. The claimant argued that section 12(1) only applies to documents instituting proceedings which are "required to be served", and in this case only the order, and not the arbitration claim form, was required to be served. Teare J agreed with that approach (and disagreed with the judgment of Burton J in AIC Ltd v Nigeria [2003] on the same issue).

Although the judge also held that the claimant had not given full and frank disclosure (in part because no reference had been made to section 12(1)), he also held that this was a "rare" case where the original order should be maintained and the claimant's failure instead marked by an appropriate order as to costs.

A further issue in the case was whether the judge (when granting an order to enforce the arbitration award as a judgment of the court) had been right to award interest after judgment at the Judgment Act 1938 rate (ie 8%) – this had had the effect of making the judgment more valuable to the claimant than the award.

The defendant argued that the court cannot "improve" the award.

Teare J held that, since the award (and hence the judgment) were for sums in a foreign currency, the court has a discretion to order interest at such rate as it thinks fit, instead of at the statutory rate. However, the tribunal had considered that interest should run until payment at the rate stated in the award and "in principle the court's discretion should be exercised by awarding interest at the rate considered appropriate by the arbitral tribunal. The parties have submitted their dispute to arbitration and the arbitral tribunal has considered what rate of interest ought to be paid until the date on which the sum awarded by the tribunal has been paid. The court should respect that decision".