ETI Euro Telecom International NV v Republic of Bolivia & Anor

Section 25 of the Civil Jurisdiction and Judgments Act 1982 does not confer jurisdiction to grant interim relief merely because parallel foreign proceedings exist. The relief must be granted in relation to those proceedings in the statutory sense.

The statutory scheme for court assistance to arbitrations, including the specific regime applicable to ICSID arbitrations, is relevant to the construction of the 1997 Order in Council. The Order was not interpreted as extending section 25 to ICSID arbitration proceedings. Further, it would be inexpedient to grant relief inconsistent with the ICSID Convention and Rules. An ICSID claimant invoking that regime must accept its limitations.

An agreement to ICSID arbitration may also constitute a contrary provision for the purposes of section 9 of the State Immunity Act 1978, leaving the State entitled to immunity from injunctive relief.

ETI obtained without-notice freezing orders against the Republic of Bolivia and Entel in support of an ICSID arbitration arising from Bolivia’s nationalisation of ETI’s interest in Entel. ETI relied on section 25 of the Civil Jurisdiction and Judgments Act 1982, referring both to related attachment proceedings in New York and to the ICSID arbitration.

The defendants sought discharge on jurisdictional grounds. They argued that the New York proceedings were ancillary to, rather than supportive of, the arbitration; that section 25 and the 1997 Order did not extend to arbitration proceedings; that relief would be inexpedient under the ICSID regime; and that Bolivia was immune under the State Immunity Act 1978.

1. The freezing orders against Bolivia and Entel were discharged. The court had no proper basis for maintaining them pending the longer hearing.

2. The New York attachment proceedings did not confer jurisdiction under section 25 of the Civil Jurisdiction and Judgments Act 1982. They concerned different assets and were themselves ancillary to the ICSID arbitration. The English order was not interim relief granted in relation to the New York proceedings: [21].

3. The Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 was not interpreted as covering arbitration proceedings. The legislative context included the detailed powers in section 44 of the Arbitration Act 1996 and the separate statutory power to extend those powers to ICSID arbitrations. That power had not been exercised. It was therefore not appropriate to construe the Order in Council as supplying that extension indirectly: [23]-[25].

4. Even if jurisdiction existed, granting the order in support of the ICSID arbitration would be inexpedient. Articles 26 and 47 of the ICSID Convention and Rule 39 of the ICSID Arbitration Rules established a regime for provisional measures, including before constitution of the tribunal. ETI could not invoke the ICSID arbitration as the basis for jurisdiction while rejecting the limitations inherent in that regime: [26]-[31].

5. Bolivia was also entitled to State immunity. Section 13(2) of the State Immunity Act 1978 barred injunctive relief against a State, and the ICSID agreement contained a contrary provision within section 9 because its applicable Convention and Rules contemplated provisional measures through the ICSID machinery unless otherwise agreed: [32]-[33].

6. The defendants were awarded costs on the standard basis. The discharge orders were stayed until 4 pm on the following Tuesday to enable ETI to seek urgent relief from the Court of Appeal. Permission to appeal was refused.