International Commercial Arbitration with Sovereign States

Edited by William T. O’Brien, Partner, Eversheds Sutherland, Global Co-Head of International Arbitration, Washington, DC, New York, USA

• ContentsForeword xxiiiAcknowledgments xxv1 States, sovereignty, and international law 1Yasmine Lahlou, Andreas Frischknecht, and Daniel Currea2 Key features of arbitration and litigation in international commercial contracts involvingprivate parties and foreign States 79Mark A. Cymrot, Mary Kate Wagner, and James J. East, Jr.3 Conducting negotiations and/or mediation with the sovereign 159Samaa Haridi and Elizabeth Wain4 Specialised advocacy 211Katia Finkel, Lennart Baijer, and Nick Catlin5 Recognition and enforcement of arbitral awards in commercial disputes againstsovereigns 252William O’Brien, Levon Golendukhin, and Iti Singh6 Performance problems in contracts with sovereigns and resolving them while planningfor arbitration 323John Lomas, Kate Johnston, and Ana Rocio Monzón Woc7 When ethics meet international arbitration 351Julien Fouret8 Key takeaways for States in preventing and managing international disputes 387Josefa Sicard-Mirabal

‘Sovereign immunity is an Achilles Heel of international arbitration. States may resist participating in an arbitral proceeding or, more likely, resist paying an award rendered against it. In the latter case, an award creditor has no choice but to seek enforcement of an award in a national court, presumably other than the court of the respondent State. The award creditor can anticipate an assertion of sovereign immunity, the outcome of which will turn on the sovereign immunity principles of the jurisdiction where enforcement is sought. In most jurisdictions, sovereign immunity is subject to exceptions, the most common of which are waiver and commercial activity; in some there may even be an exception for actions to enforce an arbitral award. But even if sovereign immunity to suit is overridden, there remains the prospect of sovereign immunity from execution of the enforcement judgment. No one can pursue a career in international arbitration without an appreciation of the intricacies of sovereign immunity. This is the background against which this masterful book is written. The presence of such a work for the international arbitration community has been long awaited. Happily it has arrived.’