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NML CAPITAL LTD v ARGENTINA

Under the Civil Jurisdiction and Judgments Act 1982 s.31, a state did not enjoy immunity in respect of proceedings to enforce a foreign judgment against it where the normal conditions for recognition of judgments were fulfilled and the state would not have been immune had the foreign proceedings been brought in the United Kingdom.

11 July 2011

The appellant hedge fund (N) appealed against a decision ((2010) EWCA Civ 41, (2011) QB 8) that it could not enforce a foreign judgment against the respondent state, Argentina, because of state immunity. Argentina had declared a moratorium on bonds it had issued. N purchased the bonds and obtained judgment on them in New York. It sought to enforce that judgment in England. The issues for determination were whether (i) the enforcement proceedings were "proceedings relating to a commercial transaction" within the State Immunity Act 1978 s.3 and therefore not subject to immunity; (ii) Argentina was prevented from claiming state immunity by the Civil Jurisdiction and Judgments Act 1982 s.31; (iii) the bonds contained a submission to the jurisdiction of the English court within s.2 of the 1978 Act; (iv) at the inter partes hearing of its application for permission to serve Argentina outside the jurisdiction, N had been entitled to raise two grounds for alleging that Argentina did not enj...

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