Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

Generally, the enforcement immunity cannot be relied upon if it has been waived.

Further, immunity from enforcement cannot be invoked if the property in question is used or intended for use by the foreign state for purposes unrelated to the exercise of sovereign powers. The Law on Jurisdictional Immunity includes the list of assets that are presumed to be used for the exercise of sovereign powers, namely:

  • property used for diplomatic or military purposes;
  • items of cultural heritage or archives that are not intended for sale;
  • property that forms part of various scientific, cultural or historical exhibitions not intended for sale; and
  • property of the central bank or another supervisory body of a foreign state that is responsible for bank supervision.
Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

Yes, usual laws and provisions on execution of judgments would apply to enforcement against states.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

Arguably, yes. At least the courts in Tatneft v Ukraine cases seem to have found that consent to arbitration results in waiver of immunity in relation to the proceedings for enforcement of the resulting award. At the same time, this waiver does not affect the ability of the claimant to cease assets of the state, which may be covered by sovereign immunity. Accordingly, the waiver is only effective in relation to the enforcement proceedings, but does not go beyond that.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Usually, the enforcement would be sought against the property used for commercial purposes. The burden would be on the applicant to show the property is used for commercial or other non-sovereign purposes.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

The Law on Jurisdictional Immunity includes the list of assets that are presumed to be used for the exercise of sovereign powers and hence covered by enforcement immunity (see question 16).

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

In accordance with article 16(1)(5) of the Law on Jurisdictional Immunity, property of the central bank or another supervisory body of a foreign state that is responsible for bank supervision is covered by enforcement immunity.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

There are no further tests to satisfy to seek enforcement against a state. However, it should be noted that domestic jurisprudence on the matter is very limited.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

The state will need to be notified of the proceedings issued against it for the purposes of enforcement. The process of service is the same as the above.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

The most relevant - if not only - case in this regard concerns the pending enforcement proceedings brought by the Russian state company Tatneft against Ukraine (cases Nos. A40-67511/2017 and A63-15521/2018). Tatneft sought to enforce in Russia an award rendered by a UNCITRAL tribunal in an investment dispute against Ukraine and so far was successful in obtaining the order for recognition and enforcement (which is currently being appealed). It is not clear, however, whether the claimant would be able to locate the assets of Ukraine not covered by sovereign immunity.

Public databases

Are there any public databases through which assets held by states may be identified?

There is no such public database. The existing databases, such as the Unified Register of Property Rights, which contains information about the owners of real property in Russia, only allow searches by property, but not by name of the owner. Consequently, the property rights of a state can only be checked with respect to a particular asset.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

The courts may assist parties with collecting information that the parties cannot obtain by themselves, but there is no general power to help identify assets held by a state any other debtor in Russia. Accordingly, it would be for the claimant to identify relevant assets. Court bailiffs dealing with enforcement are empowered to search for assets owed by a debtor, and this is seemingly not prevented by immunity.