The UK Court of Appeal has rejected an appeal from Zimbabwe and Spain seeking to overturn the International Centre for Settlement of Investment Disputes (ICSID) awards, each exceeding $100 million.
According to NewsDay, the UK courts previously dismissed Zimbabwe’s request in January to invalidate an order issued in October 2021.
The appeals were brought by investors from Zimbabwe and Spain, who secured exparte orders to register the awards. Both Zimbabwe and Spain claimed immunity from the court’s jurisdiction, but the award creditors contended that such immunity was overridden by statutory exceptions.
The Court of Appeal dismissed the arguments presented by both lower court judges, affirming that ICSID awards cannot be challenged based on State immunity.
Additionally, the Court rejected several other arguments made by the investors but did not address the issue of Spain’s case regarding the arbitration agreement.
Zimbabwe’s defenses regarding its non-immunity in the enforcement of the award have been referred back to the Commercial Court.
ALSO READ: Investigation Underway After Kombi Collides with Fuel Tanker
Zimbabwe has indicated that it would contest the enforcement of the ICSID award on different grounds if its State immunity challenge fails. The judgment noted:
“It is suggested that these would come within the class of exceptional matters which were recognised in Micula as remaining open by reason of the award being treated like any other final judgment.
Therefore, it seems that such grounds have not been adjudicated upon, remain at large, and therefore Zimbabwe is correct to state that its application to set aside the registration order should not have been dismissed but should have been the subject of further directions. I say nothing about the merit of the non-immunity defences.”
The award, issued on July 28, 2015, mandated Zimbabwe to either restore properties to Border Timbers or pay $29.3 million, and in case of default, a total of $124 million plus $1 million in moral damages.
On October 22, 2024, the Court of Appeal released its ruling on the combined appeals.
The main question addressed was whether the ICSID Convention or the Arbitration Act of 1966 limited foreign states’ immunity under the State Immunity Act of 1978.