A continuing controversy in international commercial arbitration concerns the right of a private party to an arbitration to execute an award against a recalcitrant state party, despite the advent of the doctrine of restricted immunity, which seemingly applies only to waiver of jurisdiction, not execution. The problematic issue is the extent to which, if at all, a state that has waived sovereign immunity from jurisdiction has also waived immunity from execution—in effect from enforcement of an arbitral award by attachment of its sovereign assets. In a sign that the old order may be changing, some courts have been willing to hold that consent by a state to arbitration implies waiver of immunity from execution as well as from jurisdiction. The issue was recently tackled by the Hong Kong Court of First Instance, in FG Hemisphere Associates L.L.C. v. Democratic Republic of Congo. Reyes, J. looked at what might constitute waiver of sovereign immunity, particularly with respect to immunity from execution in the context of enforcement of an arbitral award against a state, finding that participation in an arbitration, including agreement to arbitral rules requiring satisfaction of an award, was not sufficient to constitute waiver of immunity from execution in itself. Taking that decision as a useful starting place, this article discusses the issue of waiver of sovereign immunity from execution with respect to arbitral awards.
Journal of International Arbitration