Van Zyl v Kingdom of Lesotho: Enforcement of Arbitral Award Against a State
Josias Van Zyl, the trustees of the Josias Van Zyl Family Trust, and the trustees of the Burmilla Trust sought leave to enforce an arbitral award against the Kingdom of Lesotho in Singapore. The High Court of Singapore, presided over by Justice Kannan Ramesh, dismissed the appeal, holding that an order granting leave to enforce an arbitral award against a state must be served in accordance with Section 14 of the State Immunity Act. The case involved an application to enforce a final award on costs arising from an investor-state arbitration.
1. Case Overview
1.1 Court
High Court of Singapore1.2 Outcome
Appeal Dismissed
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court addresses whether leave to enforce an arbitral award against Lesotho must be served per the State Immunity Act.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Josias Van Zyl | Plaintiff | Individual | Appeal Dismissed | Lost | |
| Trustees of the Josias Van Zyl Family Trust | Plaintiff | Trust | Appeal Dismissed | Lost | |
| Trustees of the Burmilla Trust | Plaintiff | Trust | Appeal Dismissed | Lost | |
| Kingdom of Lesotho | Defendant | Government Agency | Appeal Upheld | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Kannan Ramesh | Judge | Yes |
4. Counsels
4. Facts
- The appellants were claimants in an investor-state arbitration against the Kingdom of Lesotho.
- The arbitration was commenced pursuant to the South African Development Community Protocol on Finance and Investment.
- The arbitration was administered by the Permanent Court of Arbitration and seated in Singapore.
- The tribunal rendered a partial final award on jurisdiction and merits and a final award on costs.
- The appellants filed OS 95 ex parte to enforce the final award on costs.
- The appellants attempted to serve the Order on Rajah & Tann, Webber Newdigate, and the Attorney-General of Lesotho, all of which were rejected.
- The appellants filed SUM 924 ex parte for permission to serve the Order through substituted means on Rajah & Tann.
5. Formal Citations
- Josias Van Zyl and others v Kingdom of Lesotho, Originating Summons No 95 of 2017(Registrar’s Appeal No 91 of 2017), [2017] SGHC 104
6. Timeline
| Date | Event |
|---|---|
| Partial final award on jurisdiction and merits issued | |
| Final award on costs issued | |
| Order obtained pursuant to O 69A r 6 of the Rules of Court | |
| Appellants' solicitors wrote to Rajah & Tann enclosing the Order | |
| Rajah & Tann stated it had no instructions to accept service of the Order | |
| Appellants' solicitors attempted to serve the Order on Webber Newdigate by email | |
| Appellants' solicitors attempted to serve the Order on Webber Newdigate by fax and on the Attorney-General of Lesotho by email and courier | |
| Appellants' solicitors attempted to serve the Order on Webber Newdigate by post | |
| Webber Newdigate rejected service of the Order | |
| Appellants filed SUM 924 ex parte for permission to serve the Order through substituted means on Rajah & Tann | |
| Kingdom filed Summons No 1118 of 2017 | |
| AR dismissed SUM 924 | |
| Hearing before me at the same time as RA 91 | |
| RA 91 dismissed with detailed oral grounds | |
| Judgment Date |
7. Legal Issues
- Enforcement of Arbitral Award Against a State
- Outcome: The court held that an order granting leave to enforce an arbitral award against a state must be served in accordance with Section 14 of the State Immunity Act.
- Category: Substantive
- Sub-Issues:
- Compliance with State Immunity Act
- Proper service of leave order
- Service of Process on a Sovereign State
- Outcome: The court ruled that service must be effected through the Ministry of Foreign Affairs, as per the State Immunity Act.
- Category: Procedural
- Sub-Issues:
- Substituted service
- Service through diplomatic channels
8. Remedies Sought
- Enforcement of arbitral award
- Monetary compensation (costs)
9. Cause of Actions
- Breaches of obligations under the Treaty of the SADC and related protocols
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Josias Van Zyl and others v Kingdom of Lesotho | High Court | Yes | [2017] SGHCR 2 | Singapore | Refers to the Assistant Registrar’s decision being appealed. |
| Norsk Hydro ASA v State Property Fund of Ukraine and others | English High Court | Yes | [2002] EWHC 2120 (Comm) | England and Wales | Approved in PCL and others v Y Regional Government of X [2015] EWHC 68 (Comm), both being decisions of the English High Court. Relied on by the AR. |
| PCL and others v Y Regional Government of X | English High Court | Yes | [2015] EWHC 68 (Comm) | England and Wales | Approved Norsk Hydro ASA v State Property Fund of Ukraine and others [2002] EWHC 2120 (Comm), both being decisions of the English High Court. Relied on by the AR. |
| Alcom Ltd v Republic of Colombia | House of Lords | Yes | [1984] 1 AC 580 | United Kingdom | Reference to Alcom Ltd v Republic of Colombia [1984] 1 AC 580 (“Alcom Ltd”), in which Lord Diplock stated at p 600:[T]he Act … draws a clear distinction between the adjudicative jurisdiction and the enforcement jurisdiction of courts of law in the United Kingdom. |
| AIC Limited v The Federal Government of Nigeria | Queen's Bench Division | Yes | [2003] EWHC 1357 (QB) | England and Wales | Stanley Burnton J observed that the terms “adjudicative jurisdiction” and “enforcement jurisdiction” were merely “convenient shorthand references” (at [17]). |
| Gold Reserve Inc v Bolivarian Republic of Venezuela | Court of Appeal | Yes | [2016] 1 WLR 2829 | England and Wales | The arbitration claim form in CPR 62.18(1) is simply the means by which the creditor applies for permission, similar to the purpose served by the originating summons under O 69A r 6. Like the arbitration claim form for a permission order, the originating summons is an ex parte application. |
| Embassy of Brazil v de Castro Cerqueira | Employment Appeal Tribunal | Yes | [2014] ICR 703 | England and Wales | Lewis J stated at [23] that “the purpose of [s 12 of the UK Act] is to provide for a means by which a state can be given notice of proceedings against it”. |
| NML Capital Ltd v Republic of Argentina | Supreme Court | Yes | [2011] 2 AC 495 | United Kingdom | In light of this deliberate divergence from the position taken in the European Convention, the insertion of s 22(2) of the UK Act seemed to me quite intentional and, as the AR suggested, arguably justified a “capacious” reading of s 14 of the UK Act. |
| PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal | Court of Appeal | Yes | [2014] 1 SLR 372 | Singapore | Singapore courts clearly recognise the right of a party to elect between the ‘active’ remedy of setting aside at the seat of arbitration and the ‘passive’ remedy of resisting enforcement elsewhere: PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 at [71]. |
| Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another | Court of Appeal | Yes | [2015] 4 SLR 625 | Singapore | Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another [2015] 4 SLR 625 (“Humpuss”) at [59]). |
| Ong & Co Pte Ltd v Chow Y L Carl | Court of Appeal | Yes | [1987] SLR(R) 281 | Singapore | Ong & Co Pte Ltd v Chow Y L Carl [1987] SLR(R) 281 (“Ong & Co”) (see Humpuss at [37]–[39]). |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| State Immunity Act | Singapore |
| International Arbitration Act | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Arbitral award
- State immunity
- Leave order
- Enforcement proceedings
- Substituted service
- Originating summons
- International arbitration
- Investor-state arbitration
- Service of process
- Ministry of Foreign Affairs
15.2 Keywords
- arbitration
- state immunity
- enforcement
- Singapore
- Lesotho
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| State Immunity | 90 |
| Enforcement of Foreign Judgments | 80 |
| Arbitration | 75 |
| International Arbitration | 60 |
| Private International Law | 50 |
| Administrative Law | 30 |
16. Subjects
- Arbitration
- International Law
- Civil Procedure