Case report (free download)
Case Report by Lucia Raimanová, Editor Diego Luis Alonso Massa
The central question considered in this appeal against an order of Assistant Registrar was whether a leave order to enforce an arbitral award against a sovereign State must be served through diplomatic channels in accordance with s 14 of the State Immunity Act (Cap 313, 214 Rev Ed). Having prevailed in an Investor-State arbitration commenced under Annex 1 to the Protocol on Finance and Investment of the South African Development Community, the appellants obtained a leave order to enforce the award on costs on the Kingdom of Lesotho and attempted service on the Kingdom's solicitors in prior proceedings and the Attorney General. After the attempted service failed, the appellants sought leave from the Assistant Registrar to serve the order by substituted means. The Assistant Registrar refused the application and the appellants appealed. The High Court dismissed the appeal and upheld the Assistant Registrar's decision that service of the leave order on the Kingdom of Lesotho had to be effected through diplomatic channels as required by s 14 of the State Immunity Act. The issue took the appellants and the court into unchartered waters as far as Singapore jurisprudence is concerned. The High Court held that the leave order was a "writ or other document required to be served for instituting proceedings against a State" within the meaning of s 14(1) of the State Immunity Act. In particular, the High Court held that the relevant distinction that s 14(1) of the State Immunity Act seeks to draw is not between originating and non-originating processes as argued by the appellants, but between the "institution" of new proceedings (of which the State is unaware) and the continuation of on-going proceedings (of which the State already has notice). A leave order fell into the former category and s 14 of the State Immunity Act therefore applied.
Enforcement - Singapore award - Enforcement against a State - State Immunity Act (Singapore) - Procedure for service on foreign State - Section 12 of the State Immunity Act 1978 (UK)
Case report provided by International Arbitration Case Law (IACL)