Summary

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The Award arose out of a dispute between the parties relating to a contract made in 2008 for the supply by General Dynamics to Libya of communications systems for use in military vehicles and related services. General Dynamics filed a Request for Arbitration with the ICC in January 2013. The ICC Court submitted the Arbitration to a three-member tribunal ('the Tribunal'). General Dynamics appointed its arbitrator. Libya did not nominate a co-arbitrator, and therefore the ICC directly nominated a co-arbitrator. The ICC Court then appointed a President of the Tribunal. The Tribunal was fully constituted on 7 November 2013.

Thereafter the Arbitration proceeded. Libya took part, being represented by Dr Abdurrazek Ballow and Mr Kamal Sefrioui of Sefrioui Law Firm, based in France. Claims were made against each other by both parties. On 5 January 2016 the Tribunal published a unanimous award under the 2012 ICC Rules. The Tribunal found for General Dynamics in relation to some issues and for Libya in relation to others. The overall result was that Libya was ordered to pay General Dynamics £16,114,120.62 plus interest and the costs of the Arbitration, Libya's counterclaim was dismissed, and all other claims and requests for relief were rejected.

The seat of the Arbitration had been Geneva, and accordingly the Award was a New York Convention Award. On 21 June 2018 General Dynamics made an application by arbitration Claim Form for (i) permission to enforce the Award and for judgment in its terms, and (ii) for service of the Claim Form, any order of the court, and associated documents to be dispensed with. That application was supported by the first Witness Statement of Nicholas Brocklesby, a partner of Reed Smith LLP ('Brocklesby 1').

Brocklesby 1 referred in paragraph 6 to Libya as being a sovereign State. Thereafter, it described the contract, the Arbitration and the Award, testified that the Award had not been paid whether in whole or in part, exhibited a duly certified copy of the Award and an original copy of the arbitration agreement, and sought that General Dynamics should have permission to enforce the Award in the same manner as a judgment or order of the Court to the same effect and for judgment to be entered in terms of the Award.

Then Brocklesby 1 turned to the issue of service, and sought permission to dispense with service of the Claim Form, any Order made by the Court 'and any associated documents'. Brocklesby 1, at para. 31(iii), set out the terms of s. 12(1) State Immunity Act 1978 ('SIA'). It proceeded to contend that there were exceptional circumstances which justified a departure from the requirement of service through the Foreign and Commonwealth Office (now the Foreign, Commonwealth & Development Office or 'FCDO'). These were said to include 'the practical and political challenges in effecting service in Libya'. In that connexion, Mr Brocklesby said, at paras. 43-44:

'[43] There is, however, ongoing confusion about the status and identity of the Minister of Foreign Affairs [of Libya] and, correspondingly, the status of the Ministry. …

[44] At present, due to the ongoing civil conflict in Libya, several government institutions, in essence, split into two branches, in or around 2014. Those institutions include the Ministry of Foreign Affairs. I understand that there are currently two competing governments in the country, namely:

(i) Tripoli based institutions controlled by the Government of National Accord ("the GNA"), which is recognised internationally and, in particular, by the United Nations; and

(ii) a parallel government based in Tobruk, with branches in Beida that form part of the House of Representatives (the "HoR").'

Brocklesby 1 proceeded to say that 'the political environment [was] … ever changing'; further that 'there is the question of whether, in practice, service made in accordance with Section 12 of the State Immunity Act would then be brought to the attention of the Defendant'; and in any event that, even if possible seeking to effect service in accordance with s. 12 SIA would take 'considerable time'.

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