State Immunity, Public Policy and Arbitration Agreement

The concept of state immunity, embedded in customary international law, has governed the norms of state discourse. It highlights the principle of ‘equals have no sovereignty over others.’ In jurisdictional immunity of state (UK P & I Club NV & Anor v Republica Bolivarianan De Venezuela [2023] EWCA Civ 1497), the UK High Court ruled that that the sovereign state immunity from anti-suit injunction could be justified as an interference with Article 6 of the European Convention on Human Rights by legitimate domestic policy, if pursued by proportionate means. This judgment significantly reignites the contentious legal discourse surrounding the restrictive doctrine of state immunity under section 13(2) of the State Immunity Act 1978, particularly in the context of enforcing arbitration agreements as governed by section 9(1) of the Act, addressing critical tensions between sovereign immunity and the enforceability of private contractual obligations. This article examines the balance between upholding domestic public policy and ensuring the right to access to justice, while affirming the principle of state immunity.