Immunité d’exécution et arbitrage

The foundation, legitimacy, and legal framework of sovereign immunity from execution have their own coherence that the specificities of arbitration have not disturbed. At the beginning of this century, however, French court decisions issued in Creighton v. Qatar considered that by submitting to arbitration and accepting the binding character of the award, a State implicitly waived its immunity from execution. Quite clearly, in this case, the good faith principle irrigating arbitration was endowed with quasi magical effects! These were however quickly blocked by the political, diplomatic and legal realities governing the use by one State of measures of constraint on another State’s property. A much more restrictive conception of waivers of the immunity from execution was subsequently adopted by the French courts and the legislator, inspired by the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property. As a result, today, to break the immunity lock is as difficult for the creditor, whether he is holding an arbitral award or a court judgment.