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Enforcement of ICSID Awards in England: is the door half-open or half-shut?

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Chiraag Shah and Robin Bachmann recently authored an article in Practical Law on the recent English High Court decision in Border Timbers Ltd v Republic of Zimbabwe and its impact on enforcement of International Centre for Settlement of Investment Disputes (ICSID) awards in England.

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Chiraag Shah and Robin Bachmann recently authored an article in Practical Law on the recent English High Court decision in Border Timbers Ltd v Republic of Zimbabwe and its impact on enforcement of International Centre for Settlement of Investment Disputes (ICSID) awards in England.In the article, Chiraag and Robin discuss the effects of the decision: “The Commercial Court judgment in Border Timbers Ltd v. Republic of Zimbabwe [2024] EWHC 58 (Comm) sees the English Court appearing to depart from prior practice and take an alternative approach to sovereign immunity vis-à-vis ICSID awards. If this judgment is not overturned on appeal, it could affect foreign investors seeking to enforce ICSID awards in the English Courts. The case reinforces how important it is to include appropriate dispute resolution and submission to jurisdiction clauses in agreements with states or state entities and, where a claim is being brought under an investment treaty, to pay due consideration to enforcement strategies at an early stage.”Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltf078c6f1404c5b74/65bd1137d4db55131c6ec2fe/240131-enforcement-of-icsid-awards.pdf" target="_self">full article</a>. This article is reproduced from Practical Law with the permission of the publishers. For further information visit the <a href="https://www.practicallaw.com/" target="_blank">website</a>.

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Chiraag Shah is an international disputes partner in the London office of Morrison Foerster. He has over 2 decades of experience representing clients in domestic and cross-border disputes including commercial and investor-state arbitrations around the world. Chiraag also has significant experience of cross-border multi-jurisdictional commercial litigation and sanctions related disputes.Recognised in the Arbitration Powerlist: UK, Chambers UK and as a leading individual in the Legal 500 UK, Chiraag is ‘commended for his ability to handle disputes involving the engineering and technology sectors. Recent work includes advising on proceedings related to arbitral awards, as well as ICC and SIAC arbitrations.’. Clients describe him as “breathtakingly hard-working and as a result provides exceptional results for his clients. He always has a good sense of what is best to do. He has dealt with so many arbitrations he knows exactly how it works.” “He is very responsive and provides excellent guidance and advice… is very conscientious and a pleasure to work with.” “He is cool, calm and collected... and in control all of the time.”Chiraag is dual-qualified (Kenya and England and Wales) and has represented clients in disputes in Africa and the Middle East across a range of sectors. His ‘on-the-ground experience both in Kenya (and other African jurisdictions) and the UK make him an ideal choice for disputes straddling both jurisdictions. Very well networked.’.<h4 dir="ltr">Select Experience:</h4>Arbitration<ul><li>Advising a European client in ICC Arbitration proceedings relating to sanctions compliance issues. English law applied, venue: London</li><li>Advising a Singapore headquartered commodities trader in ICC Arbitration proceedings against one of its suppliers. English law applied, venue: London</li><li>Advising a Mauritian consortium in relation to an LCIA arbitration and subsequent court proceedings in England relating to the acquisition of a Madagascan power company.</li><li>Advising a Middle Eastern entity in a SIAC arbitration relating to a joint venture project involving a telecommunications investment in Myanmar. Singapore law applied, venue: Singapore.</li><li>Advising an Israeli listed company in an ICDR Arbitration against a global distributor of medical devices regarding the distribution of high dependency units in the United States. Delaware law applied, venue: London.</li><li>Advising a Hong Kong based investment and brokerage firm in an ICC arbitration relating to post-acquisition indemnity claims arising out of the acquisition of a brokerage business. Hong Kong law applied, venue: Amsterdam.</li><li>Advising an Indonesian power company in connection with a SIAC arbitration relating to a joint venture agreement with a foreign investor, including related regulatory proceedings in Singapore. Singapore law applied, venue: Singapore.</li><li>Advising a North American Pension Fund in relation to ICC and HKIAC arbitration proceedings against Chinese entities regarding breaches of a shareholders agreement.</li><li>Advising a Chinese investor in ICSID arbitration proceedings against a European state relating to the expropriation/nationalization of assets during the economic crisis.</li><li>Advising a Middle Eastern company in an ICSID investment treaty arbitration against an Asian state relating to treaty breaches and the expropriation of investments.</li></ul> Commercial Litigation<ul><li>Advising one of the world’s leading internet streaming providers in English High Court proceedings against an AI Bot service provider</li><li>Advising a client in a multi-faceted cross-border dispute spanning numerous jurisdictions arising out of an East Asian telecoms project</li><li>Advising the bondholder creditor committee in relation to various disputes in respect of the Steinhoff Group of companies.</li><li>Advising a Qatari investor in relation to expert determination proceedings in respect of a hotel development project in Egypt.</li><li>Advising a Middle Eastern entity in relation to a customs automation project and related disputes in a West African state.</li><li>Advising an Asian consortium in relation to investment claims and boundary disputes arising out of an infrastructure project in South America.</li><li>Advising a German based manufacturer in relation to ADR and court proceedings arising out of the supply of aeronautical components to an East African based airline company.</li></ul>

Chiraag Shah

Partner

Robin Bachmann is an associate based in the London office of Morrison & Foerster and is a member of the Litigation Group. He advises clients on complex international arbitration and litigation.Robin has experience advising organizations on all aspects of dispute resolution, including claim analysis, strategic direction, settlement negotiations, case management, trial preparation and post judgement/award issues. Robin has advised clients in a number of commercial and investment arbitrations under ICC, LCIA and ICSID institutional rules as well as ad hoc arbitrations pursuant to the UNCITRAL arbitration rules. The cases he works on often contain aspects of foreign and international law. His most recent experience includes a number of commercial arbitrations focusing on large infrastructure projects in sub-Saharan Africa as well as shareholder and M&A disputes. Robin also advises clients on possibilities for international enforcement (or resisting enforcement) of arbitral awards. Robin completed his undergraduate studies at Maastricht University, where he obtained an LLB in European and Comparative Law, following which he completed an LLM in International Economic Law at the University of Warwick.Before joining Morrison & Foerster, Robin trained at a magic circle law firm in London, following which he practiced for several years at a specialist litigation firm focused on complex high value disputes.Robin is qualified as a solicitor in England and Wales.

Robin Bachmann

Associate

International Arbitration

United Kingdom