The enforcement of arbitral awards against a state: the problem of immunity from execution

This contribution to the survey of sovereign immunity issues in international commercial arbitration addresses the specific problems associated with the execution of an international arbitral award sought by a private party against a state. At the outset, we should stress that, in our opinion, only actual execution constitutes a separate phase from the arbitral proceedings. By contrast, recognition and enforcement of the award are the direct consequence and logical final step of the arbitral proceedings. Therefore, issues of immunity raised during recognition and enforcement procedures should be viewed as issues of immunity from jurisdiction.1 Hence, we shall consider the case of a state claiming immunity at the moment of actual enforcement of an award, once jurisdictional issues have been resolved and the arbitral award has been recognised. We shall refer to this case as immunity from execution. The immunity plea would then refer only to the state’s alleged immunity from enforcement by measures of execution against its property.