Implied State Waiver of Immunity
The defendant state in Stati v. Republic of Kazakhstan, a D.C. case to enforce a Swedish arbitral award under the Energy Charter Treaty, argued that it did not consent to arbitration by implication under the Foreign Sovereign Immunities Act. It took the position that the Treaty's cooling-off period had not been observed. Therefore, the United States District Court for the District of Columbia would need to respect its sovereign immunity and lack subject-matter jurisdiction.
Among numerous elements of the Federal Arbitration Act, which codifies the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of Jun3 10, 1958, and the FSIA, the court analyzed the waiver by implication element in 28 USC § 1605(a)(1). On August 5, 2016, it issed a 22-page opinion in which it found sufficient bases under the FAA and the FSIA to exercize its jurisdiction. In the end, it suspended the matter because of an ongoing petition to set aside the award in the Svea Court of Appeal. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Sat, / Embassy Law Link