Border Timbers Limited & Anor v Republic of Zimbabwe

Border Timbers Limited & Anor v Republic of Zimbabwe

The doctrine of state immunity is not engaged at the stage of registration of an ICSID award under the Arbitration (International Investment Disputes) Act 1966 and CPR Part 62.21, as the process is ministerial and does not implead the state until the order is served. Zimbabwe is not entitled to have the order for recognition and enforcement set aside on grounds of state immunity. The Claimants' failure to make full and frank disclosure was culpable but not deliberate, and does not justify setting aside the order; costs are an adequate sanction.

Parties
Claimant: Border Timbers Limited; Claimant: Hangani Development Co. (Private) Limited; Defendant: Republic of Zimbabwe
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Application to Set Aside Registration and Enforcement of ICSID Arbitral Award / Ruling on Preliminary Issues Regarding State Immunity and Enforcement
Outcome
Application to set aside registration and enforcement order dismissed
Legal Topics
ICSID Convention, Enforcement of Arbitral Awards, State Immunity Act 1978, Arbitration (international Investment Disputes) Act 1966, Recognition and Enforcement of Foreign Awards
Arbitration International Law State Immunity ICSID Convention Enforcement of Arbitral Awards State Immunity Act 1978 Arbitration (international Investment Disputes) Act 1966 Recognition and Enforcement of Foreign Awards

Case Brief

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Parties

Border Timbers Limited

Claimant

Hangani Development Co. (Private) Limited

Claimant

Republic of Zimbabwe

Defendant

Procedural Posture

Application to Set Aside Registration and Enforcement of ICSID Arbitral Award / Ruling on Preliminary Issues Regarding State Immunity and Enforcement

Legal Issues

  1. 1 Whether Zimbabwe is entitled to state immunity under the State Immunity Act 1978 in respect of recognition and enforcement of an ICSID award
  2. 2 Whether Zimbabwe waived immunity under section 2 of the State Immunity Act by operation of the ICSID Convention
  3. 3 Whether the English court is bound by the ICSID tribunal and annulment committee's determination as to jurisdiction for purposes of section 9 of the State Immunity Act

Ratio Decidendi

The doctrine of state immunity is not engaged at the stage of registration of an ICSID award under the Arbitration (International Investment Disputes) Act 1966 and CPR Part 62.21, as the process is ministerial and does not implead the state until the order is served. Zimbabwe is not entitled to have the order for recognition and enforcement set aside on grounds of state immunity. The Claimants' failure to make full and frank disclosure was culpable but not deliberate, and does not justify setting aside the order; costs are an adequate sanction.

Court Disposition

Application to set aside registration and enforcement order dismissed

Orders

  • Zimbabwe's application to set aside the order for registration and enforcement of the ICSID award is dismissed.
  • The Claimants' failure to make full and frank disclosure is sanctioned by costs, not by setting aside the order.