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Published online by Cambridge University Press: 17 January 2008
The Court of Appeal (Pill and Waller LJJ and Sir Martin Nourse) has considered interesting jurisdiction issues arising out of a projects dispute between a Pakistani company (‘Sabah’) and the Government of Pakistan (the ‘GOP’). The Court gave welcome guidance on the principles underlying the grant of anti-suit injunctions in cases where the parties have agreed to the non-exclusive jurisdiction of the English courts. However, questions of how an anti-suit injunction obtained against a State may be enforced largely remain unanswered.
1 Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002] All ER (D) 201 (Nov), [2002] EWCA Civ 1643. Also reported at [2003] 2 Lloyd's Rep 571.Google Scholar
2 At para 38.Google Scholar
3 At para 43.Google Scholar
4 For commentary on State immunity and the State Immunity Act 1978 see Lewis, C JState and Diplomatic Immunity (3rd ednLondonLloyds of London Press 1990)Google Scholar
5 and Wood, PProject Finance, Subordinated Debt and State Loans (LondonSweet & Maxwell 1995).Google Scholar
6 [1990] 2 Lloyd's Rep 521.Google Scholar
7 ‘[T]his court will not make any order in vain‘ per Kindersley V—C New Brunswick and Canada Ry and Land Co v Muggeridge (1859) 4 Drew 686.Google Scholar
8 Pill, LJ, at para 54.Google Scholar
9 Mirroring Art 18 of the European Convention on State Immunity.Google Scholar
10 And the intention of the framers of the European Convention on State Immunity.Google Scholar
11 Ibid, s 2.
12 Ibid, s 3.
13 See Eady, DSmith, ATHArlidge, Eady & Smith on Contempt (2nd edn.LondonSweet & Maxwell 1999), at 3–4.Google Scholar
14 See Benham v United Kingdom (1996) 22 EHRR 293, The Times, 24 June 1996 and Newman v Modern Bookbinders Ltd [2000] 1 WLR 2559, [2000] 2 All ER 814 CA.Google Scholar
15 Save for certain exceptions such as the commission or authoriztion of torture, see R v Bow Street Metropolitan Stipendiary Magistrates and others exp Pinochet Ugarte (No 3) [2000] 1 AC 147 HLGoogle Scholar
16 [1994] 1 AC 377.Google Scholar
17 Ibid 424–5.
18 Although there may be doubts as to whether the court would entertain a contempt action which only seeks a declaration, RSC O.45.5 (incorporated into the CPR by r50.1) provides that a judgment or order may be enforced by writ of sequestration or order of committal. There is no reference to any procedure to seek a declaration of contempt, although arguably a declaration could be sought pursuant to CPR r25.1 which provides: ‘The court may grant the following interim remedies…(b) an interim declaration.’Google Scholar
19 Compared with a contempt action against the injuncted party itself which is civil in nature (at least nominally).Google Scholar
20 Per Lord Uthwatt, Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406 HL, at 407.Google Scholar
21 The Times 2 May 1997.Google Scholar
22 Incorporating the Diplomatic Privileges Act 1964.Google Scholar
23 [1993] 2 Lloyd's Rep 208.Google Scholar
24 [1990] 2 Lloyd's Rep 521.Google Scholar
25 Sabah Shipyard v Pakistan [2002] All ER (D) 201, at para 41.Google Scholar
26 See Art 20, ‘A Contracting State shall give effect to a judgment given against it by a court of another Contracting State.’ However, Art 20(2) also provides that a Contracting State is not obliged to give effect to a judgment where proceedings are pending before a court of that (or another) Contracting State where those proceedings were the first to be instituted.Google Scholar