Herbert Smith Freehills review the decision of the English Court dismissing an application by Ukraine to set aside a court order permitting Russian investor, PAO Tatneft, to enforce an arbitral award against Ukraine. Ukraine argued that it was immune from the Court’s jurisdiction by virtue of the State Immunity Act 1978, with the Court finding that Ukraine had not waived its right to rely on state immunity arguments, despite not having raising them in the arbitration.
The authors observe that the case demonstrates that, while it is open to a State embroiled in an arbitration to seek state immunity before the English court in respect of proceedings in relation to the same arbitration, in reality it may be difficult to establish that it has not submitted in writing to arbitrate the dispute.
