ETI EURO TELECOM INTERNATIONAL NV V REPUBLIC OF BOLIVIA

[2008] EWCA Civ 89, Court of Appeal, Lord Justice Tuckey, Lord Justice Lawrence Collins and Lord Justice Stanley Burnton, 28 July 2008

Arbitration – Bilateral Investment Treaty – Interim relief – Application to freeze assets of company pending ICSID arbitration on investment dispute – Whether English court had jurisdiction to grant freezing order – State immunity – Arbitration Act 1996, section 44 – Civil Jurisdiction and Judgments Act 1982, section 25 – State Immunity Act 1978, sections 6, 9 and 13 – Arbitration (International Investment Disputes) Act 1966

Holland and Bolivia entered into a Bilateral Investment Treaty under which any investment disputes between the Bolivian government and a Netherlands company were to be referred to arbitration under the auspices of the International Centre for the Settlement of Investment Disputes. A dispute arose concerning Bolivia’s nationalisation of Entel, a company in which ETI, a Netherlands company, possessed a substantial interest, and ETI commenced arbitration proceedings. Bolivia claimed that it denounced the ICSID Convention and refused to participate. ETI wished to freeze the assets of Entel, and applied to the New York courts to freeze Entel’s assets in a US bank. Some days later ETI applied to the English courts to freeze Entel’s assets held in a London bank. The question was whether the English court possessed jurisdiction to make the order. The Court of Appeal held that no such jurisdiction existed.