UNIÓN FENOSA GAS, S.A. v ARAB REPUBLIC OF EGYPT

Registration of an ICSID award under the Arbitration (International Investment Disputes) Act 1966 and CPR r. 62.21 may be sought without notice. The reference to Part 8 does not require service of the arbitration claim form or a full inter partes hearing. Service of the registration order is sufficient. The court may dispense with that service where the state has received notice and the circumstances justify regularisation. Alternative service remains available for documents outside the scope of section 12 of the State Immunity Act 1978. Applications to set aside without-notice orders require proof of material non-disclosure or procedural prejudice.

UFG obtained an ICSID award against Egypt and issued an arbitration claim form seeking registration under section 1 of the Arbitration (International Investment Disputes) Act 1966 and CPR r. 62.21. Males J. registered the award without notice. UFG served the registration order through the Foreign and Commonwealth Office but did not serve the claim form.

Teare J. later dispensed with service of the registration order and declared that service of the claim form was unnecessary. Waksman J. permitted alternative service of Teare J.’s order and related documents on Egypt’s solicitors. Egypt applied to set aside both orders, alleging failure to serve the claim form, lack of justification for dispensing with service and alternative service, and material non-disclosure.

1. The application was dismissed. CPR r. 62.21 must be read as a special and simplified regime. Its reference to the Part 8 procedure is modified by the rule’s incorporation of selected provisions of CPR Part 74. It does not require a full inter partes Part 8 process or service of the arbitration claim form. A registration application may be made without notice. The registration order is then served, and the state may apply to set it aside.
2. The conclusion was reinforced by the ICSID Convention scheme. Awards are binding and enforceable as final judgments, subject to the Convention’s internal procedures for interpretation, revision and annulment. The possible national-law defences identified in Micula v Romania [2020] UKSC 5 are, in any event, substantially narrower than the New York Convention defences.
3. Section 12(1) of the State Immunity Act 1978 applies to documents required for instituting proceedings. Following General Dynamics UK Ltd v State of Libya [2019] EWCA Civ 1110, a registration or enforcement order is not such a document. Its service is governed by CPR r. 6.44. In any event, receipt by Egypt’s Ministry of Foreign Affairs through the permitted diplomatic channel was sufficient. Returning the documents did not invalidate service.
4. The exceptional-circumstances test did not control the application to dispense with service because Egypt had already received notice of the proceedings. Even if that higher test applied, the circumstances satisfied it. UFG had attempted the prescribed service, the documents had reached Egypt, the service position was obscured by an unexplained return or lost certificate, Egypt was represented, and requiring a fresh attempt would cause substantial delay. The court could consider facts existing at the time of Teare J.’s order which later became known.
5. Alternative service under CPR rr. 6.15 and 6.27 required a good reason, attention to the document, and consideration of the parties’ conduct. The documents had reached Cleary, which represented Egypt in the proceedings. Egypt’s technical objections and the resulting delay justified alternative service. The dictum in General Dynamics UK Ltd v State of Libya [2019] EWCA Civ 1110 was confined to documents within section 12 of the 1978 Act and did not prohibit alternative service generally.
6. The duty of full and frank disclosure on a without-notice application was correctly stated in Konamaneni v Rolls Royce Industrial Power (India) Ltd [2002] 1 WLR 1269. No material non-disclosure was established. The omission from Waksman J.’s order of the statement required by CPR r. 23.9(3) was a harmless procedural error, addressed without prejudice under CPR r. 3.10. The orders therefore remained in force.

• High Court (Commercial Court), Males J. On 19 December 2018, the ICSID award was registered without notice as if it were a judgment of the High Court.
• High Court (Commercial Court), Teare J. On 10 October 2019, service of the registration order was dispensed with and it was declared that service of the claim form was unnecessary.
• High Court (Commercial Court), Waksman J. On 15 November 2019, alternative service of Teare J.’s order and related documents on Egypt’s solicitors was permitted.
• High Court (Commercial Court), Jacobs J. Egypt’s applications to set aside both orders were dismissed.