Border Timbers Limited & Anor v Republic of Zimbabwe

A state’s agreement under the ICSID Convention to recognise and enforce awards amounts to a general waiver of immunity from recognition and enforcement, but it is not sufficiently specific to constitute a submission to the jurisdiction under section 2 of the State Immunity Act 1978.

Section 9 requires the English court independently to determine whether the state agreed in writing to submit the particular dispute to arbitration, even where an ICSID tribunal and annulment committee have ruled on jurisdiction. Registration of an ICSID award under section 2 of the Arbitration (International Investment Disputes) Act 1966 is a ministerial process. State immunity is not engaged until the registration order is served, and cannot then be invoked to challenge registration itself.

The claimants obtained an ICSID award against Zimbabwe for approximately US$124 million, together with moral damages, interest and costs. The award was not satisfied, and the claimants obtained an order registering it as a judgment of the High Court under section 2 of the Arbitration (International Investment Disputes) Act 1966.

Zimbabwe applied to set aside the order, relying on state immunity under section 1(1) of the State Immunity Act 1978. The claimants relied on the submission and arbitration exceptions in sections 2 and 9, and Zimbabwe also alleged inadequate full and frank disclosure on the without-notice registration application. The issues concerned the effect of Articles 53–55 of the ICSID Convention, the scope of the statutory exceptions, the availability of jurisdictional challenges, and whether immunity was engaged at the registration stage.

1. Outcome. Zimbabwe’s application to set aside the registration order was dismissed. The claimants’ breach of the duty of full and frank disclosure was culpable but did not justify setting aside the order; costs were sufficient.
2. ICSID Convention. Articles 54(1) and 54(2) distinguish recognition and enforcement, in the sense of according an award the status of a final judgment, from execution. Article 54(3) and Article 55 preserve the domestic law of state immunity in relation to execution against assets. The Convention does not permit an enforcing court to reopen the merits or refuse recognition on ordinary public policy grounds.
3. Section 2. Article 54 amounts to an express waiver of immunity in respect of recognition and enforcement, but section 2 requires a submission in respect of the jurisdiction actually exercised in identifiable proceedings. A general treaty waiver is not, without more, a submission to the jurisdiction of the English courts. The claimants therefore failed to establish the section 2 exception.
4. Section 9. Section 9 is of general application and requires the English court to satisfy itself that the state agreed in writing to submit the particular dispute to arbitration. The court is not bound for this purpose by the prior determination of an ICSID tribunal or annulment committee. It must independently assess whether the arbitration agreement covered the dispute. The section 9 exception was therefore not established.
5. Registration. Registration under section 2 of the 1966 Act gives effect to a statutory entitlement and involves no adjudicative discretion. The state is not impleaded until the registration order is served. Immunity is therefore not engaged at the anterior registration stage. Once served, the state may challenge only matters such as excess of the registration order or material non-disclosure, and may claim immunity against later execution steps.

First-instance decision. The judgment refers to an earlier registration order made by Cockerill J on 8 October 2021 and to the direction of Jacobs J on 27 January 2023 that preliminary issues be determined.