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Contested enforcement, state immunity and the Arbitration Act 1996 (Hulley v Russia)

Contested enforcement, state immunity and the Arbitration Act 1996 (Hulley v Russia)
Published on: 26 April 2021
Published by: LexisPSL
  • Contested enforcement, state immunity and the Arbitration Act 1996 (Hulley v Russia)
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Article summary

Arbitration analysis: Mr Justice Henshaw in the Commercial Court concluded that where a party has challenged the jurisdiction of the English court under the State Immunity Act 1978 (SIA 1978), the court does not have the power under section 103(5) of the Arbitration Act 1996 (AA 1996) to order an adjournment of contested proceedings for recognition or enforcement of a New York Convention arbitral award pending determination of set-aside proceedings at the court of the seat, or order security in support of such an adjournment. Henshaw J reaffirmed the well-established principle that state immunity is a preliminary issue, which must be decided before any other issues in the case. He clarified that any exercise of powers under AA 1996, s 103(5) would constitute the assertion of adjudicative jurisdiction over a state in circumstances where the court has not yet determined such jurisdiction to exist. The court’s jurisdiction to stay proceedings in which state immunity is asserted arises under its general case management powers in determining when and how the challenge to state immunity should be heard. Accordingly, the court declined to grant the claimants’ request that a case management stay of the enforcement proceedings be lifted, and rejected the claimants’ application for the provision of security by the defendant, pending the final outcome of set-aside proceedings in the Netherlands. Written by David Goldberg, partner, and Stephanie Stocker, associate, at White & Case LLP. White & Case acted for The Russian Federation. or take a trial to read the full analysis.

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