[2008] EWCA Civ 880

ETI appealed against a decision setting aside freezing orders granted in its favour against the defendants. ETI, had a 50% holding in a telecommunications company but claimed that Bolivia had taken measures to renationalise the company, which adversely affected the value of its investment without paying fair compensation. ETI submitted its claim to the International Centre for Settlement of Investment Disputes (“ICSID”) claiming that Bolivia had breached the Netherlands/Bolivia bilateral -investment treaty (“BIT”).

ETI had obtained a freezing order in respect of bank deposits in New York and had sought a similar order, pursuant to s25 of the Civil Jurisdiction and Judgments Act 1982, in respect of about US$50 million held on deposit in London. The CA confirmed that ETI were not entitled to the order sought because on any view, the English proceedings were not related to, any substantive proceedings in New York, (however “liberally” those expressions were interpreted), as required by the 1982 Act. The New York attachment proceedings constituted interim relief to protect assets pending the outcome of the ICSID arbitration. They were directed solely at assets in New York. Further the 1982 Act did not extend to the making an order in support of ICSID arbitrations. Indeed, the nature of the ICSID Convention was that was that it was self-contained and provisional measures might only be sought from the ICSID tribunal itself and not a national court.

Finally, Bolivia argued that it was entitled to state immunity in that subject to limited exceptions, you could not make freezing orders against a State. The CA agreed.