The matter before me arises out of an arbitration award dated 28 July 2015 made under the auspices of the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention"). The arbitration in question was brought by the Claimants against the Defendant, the Republic of Zimbabwe ("Zimbabwe") and related to the alleged expropriation of the Claimants' land in Zimbabwe. By the award, Zimbabwe was ordered to pay to the Claimants some US$124 million plus interest, together with a further US$1 million in moral damages and costs.
Zimbabwe applied to have the award annulled by means of a process provided for in the ICSID Convention itself. That application was dismissed by the ICSID annulment committee on 21 November 2018 with further costs ordered to be paid by Zimbabwe. The award was not satisfied and on 15 September 2021, the Claimants applied to the English court without notice under CPR Part 62.21 for registration and entry of judgment on the award in England pursuant to section 2 of the Arbitration (International Investment Disputes) Act 1966 (the "1966 Act"). That application was granted by Mrs Justice Cockerill on 8 October 2021, who ordered that the award be recognised and entered as a judgment by the High Court in the same manner and with the same force and effect as if it were a final judgment of this court.
Cockerill J's order was served on Zimbabwe on 27 May 2022. On 25 July 2022, Zimbabwe applied to set it aside on the grounds that Zimbabwe was immune from the jurisdiction of the UK courts by virtue of section 1(1) of the State Immunity Act 1978. In response, the Claimants argued that Zimbabwe fell within one or both of the exceptions to immunity set out in sections 2 and 9 of the 1978 Act on the basis that it had submitted to the jurisdiction by virtue of its agreement to the ICSID Convention and/or had agreed to submit the underlying dispute to ICSID arbitration and so was not immune in respect of proceedings in the United Kingdom relating to that arbitration.
In these circumstances, it was directed by Jacobs J on 27 January 2023 that the following preliminary issues (in essence) be determined in advance:
(a) Whether Zimbabwe was entitled to claim state immunity in relation to these proceedings;
(b) Whether Zimbabwe had waived such immunity under section 2 of the State Immunity Act by operation of the ICSID Convention;
(c) Whether the English court was bound for the purposes of section 9 of the State Immunity Act by the determination of the ICSID tribunal and the annulment committee as to the jurisdiction of the tribunal;
(d) Whether Cockerill J's order should in any event be set aside for breach of the Claimants' duty of full and frank disclosure in failing to draw the attention of the judge in the without notice application to potential arguments on state immunity and/or in failing to establish any legal basis for an exception to immunity.
This is the hearing of those issues.
I mention one point at the outset in order to dispose of it. On behalf of the Claimants, Mr Christopher Harris KC made much of the fact that Zimbabwe had participated fully in the ICSID arbitration but had failed in its defence before a vastly experienced tribunal. Its attempt to have the award annulled had likewise failed on all points, yet it was now resisting enforcement of the award on substantially the same grounds as had been advanced and rejected previously (albeit with the addition of one further ground). He observed that it was now 10 years since the original award was issued and the Claimants were still no closer to receiving the damages awarded to them.
I have no doubt that this protracted chronology is a source of immense frustration to the Claimants and that in their eyes the present application is no more than a further attempt by Zimbabwe to frustrate and obstruct the enforcement of the award so as to avoid having to meet its obligations. Whether true or not, however, it is irrelevant to the question I have to decide, which is whether Zimbabwe is entitled to have Cockerill J's order set aside on the grounds asserted or not.