Sovereign Immunity

"[The state party] irrevocably waives any claim to immunity in relation to any arbitration or court proceedings arising out of or connected with this Agreement, including without limitation, immunity from:

(i) jurisdiction of any court or tribunal;

(ii) service of process;

(iii) injunctive or other interim relief, or any order for specific performance or recovery of land; and

(iv) any process for execution of any award or judgment against its property.

In addition, in respect of any proceedings arising out of or connected with the enforcement and/or execution of any award or judgment made against it, [state party] hereby submits to the jurisdiction of any court in which any such proceedings are brought."

Any arbitration or jurisdiction clause in a contract with a government should always include a waiver of immunity against both:

• the jurisdiction of the tribunal (strictly this is not necessary in an arbitration clause, as a party signing up to an arbitration clause is generally taken to waive immunity against the jurisdiction of the arbitral tribunal, but we have heard the contrary argued); and
• execution of the judgment or arbitration award. So far as the English courts are concerned (following the Supreme Court's decision in NML Capital Ltd -v- Argentina [2011] UKSC 31) whilst it is not strictly necessary to insert an express submission to the jurisdiction of any forum in which enforcement proceedings may be brought, inclusion of this language leaves no room for doubt that the state party is not immune from enforcement in the relevant forum.

The efficacy of this precedent under particular relevant legal systems should be checked with the local lawyers involved in the transaction.