UK Supreme Court Confirms Registration of ICSID Awards

I have already reported on the judgment of the High Court of England and Wales in Border Timbers Ltd v Zimbabwe [2024] EWHC 2024 (Comm), which dismissed an application to set aside an order granting registration of an ICSID award. The High Court had reached a similar conclusion in Infrastructure Services Luxembourg SARL v Spain [2023] EWHC 1226 (Comm). The Court of Appeal jointly heard and dismissed the appeals against these two judgments in [2024] EWCA Civ 1257. The Supreme Court dismissed the further appeal on 4 March 2026 in [2026] UKSC 9.

The facts were straightforward. The award creditors had obtained ICSID awards against Zimbabwe and Spain. Foreign states are immune from the jurisdiction of UK courts unless one of the exceptions in the State Immunity Act 1978 applies. The central question was whether, by agreeing to be bound by the ICSID Convention, Zimbabwe and Spain had submitted to the adjudicative jurisdiction of English courts by agreement within the meaning of section 2(2) of the 1978 Act.

The Supreme Court held that submission for the purposes of section 2(2) does not need to be express, but it must be sufficiently clear and unequivocal. By applying the Vienna Convention on the Law of Treaties and examining the ordinary meaning of the terms of the ICSID Convention, together with its context, object and purpose and travaux préparatoires, the court held that Zimbabwe and Spain had submitted to the adjudicative jurisdiction of English courts. Consequently, the ICSID awards could be registered under the Arbitration (International Investment Disputes) Act 1966. In reaching this conclusion, the Supreme Court agreed with the judgments to the same effect in Australia, New Zealand, Malaysia and the United States (referred to at [134]-[142]).

Although this persuasive judgment will be of particular interest to investment arbitration and general public international lawyers, I think it is also of some interest to private international lawyers. The case illustrates well the distinction between recognition and enforcement of foreign awards and judgments, on the one hand, and their execution, on the other. An interesting feature of the ICSID Convention is that, by accepting to be bound by Articles 53-55, Contracting States simultaneously waive immunity from adjudicative jurisdiction of domestic courts, and therefore immunity from proceedings to register an ICSID award under the 1966 Act, and retain immunity from execution. The Supreme Court explained the different treatment of immunity from adjudicative jurisdiction and immunity from execution in the following way at [87]:

While the line between enforcement and execution may not be clear and neither term is defined…, the scheme of these articles draws a sharp distinction between recognition and enforcement on the one hand (article 54(1) and (2)) and execution on the other (articles 54(3) and 55). It follows that the award must first be recognised and only after that stage has been completed can any execution steps be taken. The immunity from execution is not an immunity from the prior step involved in having the award recognised in domestic law and domestic laws on immunity from execution can only be applied if the domestic courts first have jurisdiction. The preservation of state immunity in article 55 extends only to execution and does not concern the earlier steps including recognition. Accordingly, the obligation to recognise and enforce an arbitral award is limited to steps up to but not including the obligation to ensure execution if that is barred by a claim to state immunity.