Sovereign Immunity and the Execution of Arbitral Awards Against Sovereign States

Abstract

This paper seeks to examine the tension that arises between the sovereign immunity of states and the execution of arbitral awards against sovereign states. This is specifically examined in the context of Democratic Republic of Congo v FG Hemisphere Associates LLC [2011] HKEC 747, where the Hong Kong Court of Final Appeal found that Hong Kong is bound to apply the doctrine of absolute sovereign immunity, consistent with the policy applied in the People’s Republic of China. The effect of this was to prevent FG Hemisphere Associates LLC from enforcing the awards that had been rendered against the Democratic Republic of the Congo in previous ICC arbitrations. This paper progresses through an examination of the scope of the international commercial arbitration regime and the theory of sovereign immunity at international law. It addresses many issues that arise in the context of this case and the enforcement of international commercial arbitration awards more generally, through the interplay of the international arbitration regime and the doctrine of sovereign immunity.