Court of Appeal confirms freezing injunction not available in support of ICSID arbitration

In ETI Euro Telecom International NV v Republic of Bolivia and anor [2008] EWCA Civ 880, the Court of Appeal upheld the decision of Smith J that the English court does not have jurisdiction under the Civil Jurisdiction and Judgments Act 1982 (CJJA) and the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (the 1997 Order), to grant a freezing injunction in support of an attachment order obtained from the New York courts, which itself had been granted in support of an ICSID arbitration. Moreover, the ICSID arbitration proceedings themselves were not "proceedings" for the purpose of section 25 of the CJJA and the 1997 Order.

Collins LJ made detailed reference to the legislative purpose behind section 25 of the CJJA and the 1997 Order, which he considered are directed to foreign proceedings on the substance of the matter. Moreover, arbitral proceedings were not "proceedings" with section 25(3) of the CJJA. The power of the legislature to extend section 44 of the Arbitration Act 1996 to ICSID arbitration (thereby enabling national courts to grant interim measures in support of ICSID arbitration) has not been exercised because there is no need for such a power, in view of the provisions in the ICSID Convention and Arbitration Rules enabling parties to seek interim measures from the tribunal.

This decision provides robust confirmation that the legislative provisions for the grant of interim relief in support of arbitration do not extend to ICSID arbitration. Furthermore, the court's power under section 25 of the CJJA to grant interim relief is restricted to relief in relation to foreign substantive proceedings.

PLC Dispute Resolution would like to thank John Fordham and Richard Garcia of Stephenson Harwood, for their contribution to this update.