The Republic of Argentina recently went to the Court of Appeal regarding an order that allowed a company, NML Capital Limited, to serve an English claim form and particulars of claim on the foreign state. The judgment had been obtained in the state of New York in the United States and related to foreign currency bonds.
Given that there was no reciprocal treaty between Great Britain and the United States in terms of court judgments, the appropriate method of enforcement was to bring a further action in England to obtain judgment in this country. Because the judgment debtor was in this case a foreign state, NML Capital Limited had to satisfy the court that the state was not immune to the proceedings.
As it was not clear whether the Republic of Argentina had agreed to submit to the jurisdiction of England and Wales, the burden was on NML Capital to demonstrate that there was a ‘good, arguable case’ that the foreign state was not immune. Without this information the court would not have been able to allow the claim form and particulars of claim to be sent to the Foreign and Commonwealth Office, from where the papers would be sent to the Ministry of Foreign Affairs in Argentina.