State Immunity Act 1978 survives challenge

In a case before the Commercial Court the claimants had applied under s 42(1) of the Arbitration Act 1996 to enforce a peremptory order of an LCIA tribunal seated in London.

They issued an arbitration claim form, and obtained ex parte orders permitting service on the Government’s solicitors in London and abridging time for filing an acknowledgment of service.  Mr Justice Hamblen set aside the orders, concluding that the claimants were “instituting proceedings” within the meaning of s 12(1) of the State Immunity Act 1978.

Accordingly, the statutory requirements on service will apply even where: (i) there is an ongoing arbitration in England; (ii) the Court proceedings may be ancillary to that arbitration; and (iii) it is said that the foreign state entity has waived immunity in the ordinary sense by agreeing to and participating in the arbitration.