Arbitration Agreements as Waivers to Sovereign Immunity

Abstract

The purpose of this article is to analyse the effects of arbitration agreements entered into between a State and a foreign natural or juridical person on the immunity of that State before foreign jurisdictions. This issue is being examined in light of the provision of Article 17 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI) of 2004, which has not yet entered into force. The arbitration exception to State immunity provided by Article 17 UNCSI does not extend its effect to the execution stage of the proceedings. Moreover, Articles 18(a)(ii) and 19(a)(ii) UNCSI require that the foreign State expressly consent to pre-judgment or post-judgment measures of constraint, such as attachment or arrest, indicated by an arbitration agreement (or in a written contract). Article 17 of UNCSI only provides for a waiver to State immunity from a foreign court’s supervisory jurisdiction on questions relating to arbitration. Such a limitation is confirmed by Articles 18(a)(ii) and 19(a) (ii) UNCSI, which require an express consent (contained in the arbitration clause or in a written contract) by the foreign State to the taking of measures of execution or provisional measures on its properties. While the Convention purports to represent a codification of existing international law, this article concludes that its regulation of the effects of arbitral agreements is already overcome by the judicial practice of the countries where arbitration is more frequently held, namely France, the United States (US), the United Kingdom (UK) and Switzerland. If the Convention entered into force, the statutes or case law adopted by those countries would be rendered inconsistent with the codified international law and as a result would have to adjust to it through the promotion of less liberal solutions. Instead, the Author believes that the practice of those countries is preferable and ought not to be modified, as it results in a marked support to the effectiveness of arbitration agreements between private businesses and foreign States.