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CURRENT DEVELOPMENTS: II. Enforcing Anti-Suit Injunctions Against Sovereign States

Published online by Cambridge University Press:  17 January 2008

Abstract

The Court of Appeal (Pill and Waller LJJ and Sir Martin Nourse) has considered interesting jurisdiction issues arising out of a projects dispute between a Pakistani company (‘Sabah’) and the Government of Pakistan (the ‘GOP’). The Court gave welcome guidance on the principles underlying the grant of anti-suit injunctions in cases where the parties have agreed to the non-exclusive jurisdiction of the English courts. However, questions of how an anti-suit injunction obtained against a State may be enforced largely remain unanswered.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002] All ER (D) 201 (Nov), [2002] EWCA Civ 1643. Also reported at [2003] 2 Lloyd's Rep 571.Google Scholar

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7 ‘[T]his court will not make any order in vain‘ per Kindersley V—C New Brunswick and Canada Ry and Land Co v Muggeridge (1859) 4 Drew 686.Google Scholar

8 Pill, LJ, at para 54.Google Scholar

9 Mirroring Art 18 of the European Convention on State Immunity.Google Scholar

10 And the intention of the framers of the European Convention on State Immunity.Google Scholar

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12 Ibid, s 3.

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18 Although there may be doubts as to whether the court would entertain a contempt action which only seeks a declaration, RSC O.45.5 (incorporated into the CPR by r50.1) provides that a judgment or order may be enforced by writ of sequestration or order of committal. There is no reference to any procedure to seek a declaration of contempt, although arguably a declaration could be sought pursuant to CPR r25.1 which provides: ‘The court may grant the following interim remedies…(b) an interim declaration.’Google Scholar

19 Compared with a contempt action against the injuncted party itself which is civil in nature (at least nominally).Google Scholar

20 Per Lord Uthwatt, Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406 HL, at 407.Google Scholar

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22 Incorporating the Diplomatic Privileges Act 1964.Google Scholar

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26 See Art 20, ‘A Contracting State shall give effect to a judgment given against it by a court of another Contracting State.’ However, Art 20(2) also provides that a Contracting State is not obliged to give effect to a judgment where proceedings are pending before a court of that (or another) Contracting State where those proceedings were the first to be instituted.Google Scholar