General Dynamics United Kingdom Limited v The State of Libya

For section 13(3) of the State Immunity Act 1978, written consent is established by construing the words of the relevant agreement under its governing law. The statute imposes no additional requirement for special, clear or formulaic words.

An agreement that an arbitral award is final, binding and wholly enforceable may amount to consent to the whole enforcement process, including execution against state property. That is particularly so where the agreement incorporates ICC Rules requiring the parties to carry out an award without delay. A submission to arbitration alone concerns adjudicative immunity and does not itself waive enforcement immunity.

GDUK obtained an ICC arbitration award against Libya under a Swiss-law contract for the supply of a tactical communications and information system. The award was recognised in England and Wales, and GDUK obtained an interim charging order over Libyan property in London.

The Commercial Court, in [2024] EWHC 472 (Comm), held that clause 32 of the contract gave Libya written consent, for the purposes of section 13(3) of the State Immunity Act 1978, to execution against its property. It made a final charging order and dismissed Libya's application to discharge the interim order.

Libya appealed. The central issue was whether clause 32, which provided that an ICC award would be final, binding and wholly enforceable, consented to enforcement by execution as well as submission to adjudicative jurisdiction.

1. Appeal dismissed unanimously. Libya had given written consent to enforcement of the award within section 13(3) of the State Immunity Act 1978. The final charging order therefore stood.

2. Section 13(3) requires the court to determine, by construing the written words under the law governing that exercise, whether and to what extent the state expressed consent. It does not impose a separate requirement for special, clear, or formulaic words. If the properly construed agreement unequivocally gives consent, it is express consent for the subsection even though it does not use the words “consent” or “waiver”.

3. The applicable Swiss law supplied the principles for construing clause 32. Whether the meaning thereby ascertained amounted to a waiver of immunity in England and Wales was a question of English law. Swiss substantive law on immunity was therefore immaterial.

4. All members of the court held that clause 32 consented to enforcement jurisdiction. Lewison and Zacaroli LJJ regarded the express agreement that the award would be “wholly enforceable” as sufficient: the alternative meanings advanced by Libya were already achieved by the separate provision that the award was final and binding, or were commercially implausible. Phillips LJ considered that phrase in the context of the whole clause. The incorporated ICC Rules required Libya to carry out an award without delay, reinforcing the conclusion that the parties had agreed to all waivers necessary for the award to be carried out, including execution.

5. The court maintained the distinction between adjudicative and enforcement immunity. Libya's submission to ICC arbitration, reflected in section 9, removed adjudicative immunity only. Clause 32 went further and supplied the written consent required for process against property under section 13(3).

• Court of Appeal (Civil Division): dismissed Libya's appeal and upheld the final charging order: [2025] EWCA Civ 134.
• High Court, Commercial Court: held that clause 32 gave written consent under section 13(3) of the State Immunity Act 1978, made a final charging order over Libyan property, and dismissed Libya's discharge application: [2024] EWHC 472 (Comm).
• Supreme Court: at an earlier enforcement stage, determined the requirements for service under section 12(1) of the State Immunity Act 1978: [2021] UKSC 22.