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GPGC v. Ghana, Judgment of the High Court of Justice of England and Wales, October 12, 2023

12 Oct 2023
Ghana Power Generation Company v. Republic of Ghana, PCA Case No. 2019-05
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Judgment of the High Court of Justice of England and Wales
Document Details:
LISTED PARTICIPANTS
Judgment of the High Court of Justice of England and Wales
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Richard H. Davison
Claimant's counsel
James Willan, Catherine Jung
Claimant's law firm
Respondent's counsel
Stephen Houseman, Luke Tattersall
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Ghana, Stephenson Harwood, White & Case, Ghana Power Generation Company
Country
United Kingdom
Print reporter
Document Summary
Judgment of the High Court of Justice of England and Wales
This summary note is machine-generated. Always consult the original materials.

Procedural Background

This judgment arises from enforcement proceedings before the English High Court concerning a US$140 million arbitral award rendered in favour of GPGC Limited against the Government of the Republic of Ghana. Following an ex parte order granting GPGC leave to enforce the award (the Cockerill Order), which was served via diplomatic channels pursuant to Section 12(1) of the State Immunity Act 1978 (SIA), GPGC sought interim charging orders (ICOs) over London properties owned by Ghana. GPGC subsequently obtained an order permitting alternative service of the ICO applications by post and email (the Knowles Order). Ghana applied to set aside the Knowles Order, contending that the enforcement applications constituted distinct proceedings requiring formal diplomatic service under Section 12(1) of the SIA and Civil Procedure Rules (CPR) 6.44.

Legal Issues and Parties' Positions

The principal legal issue was whether applications for charging orders and receivership, made subsequent to an order granting leave to enforce an arbitral award, constitute documents "instituting proceedings" against a State under Section 12(1) of the SIA. Ghana, relying on the Supreme Court's decision in General Dynamics United Kingdom Ltd v State of Libya, argued that each enforcement application was a distinct process requiring diplomatic service. GPGC maintained that the Cockerill Order was the sole document instituting proceedings, and that subsequent enforcement applications were merely interlocutory steps within those existing proceedings.

Court's Analysis and Findings

The Court dismissed Ghana's application, holding that the statutory purpose of Section 12(1) of the SIA—to provide a State with notice and a fair opportunity to respond—was fulfilled upon the diplomatic service of the Cockerill Order. Master Davison distinguished General Dynamics, noting that enforcement applications are classically characterised as "further steps" in existing proceedings rather than the institution of new proceedings. The Court affirmed that CPR 6.44 is coterminous with Section 12(1) of the SIA and does not impose a broader requirement for diplomatic service of all subsequent documents. Furthermore, the Court held that even if CPR 6.44 applied, the risk of severe delay and the diminishing nature of the leasehold asset constituted "good reason" to authorise alternative service under CPR 6.15.

Decision

The Court refused to set aside the Knowles Order, thereby validating the alternative service of the enforcement applications and directing that the bifurcated hearing regarding the finalisation of the charging orders and the receivership application proceed.