Sovereign Immunity from Execution of Foreign Arbitral Awards: Sweden’s Liberal and Pragmatic Contribution

Abstract

The plea of sovereign immunity can be invoked by a State in order to prevent a foreign court from either exercising its jurisdiction to hear a case against the state or to attach and execute against its property. In other words, it functions as a procedural shield available only to States, whereby the substantive issues at hand cannot be addressed by the foreign court if the plea is successfully invoked.
Courts have struggled with the plea of sovereign immunity for many years, but yet several issues remain unresolved. One largely unresolved issue is that of immunity from execution, and hence it has been described as “the last fortress, the last bastion of [sovereign] immunity.” This chapter will discuss the defense of sovereign immunity from execution of foreign arbitral awards in the Swedish context. This will include some discussion on attachment, which can also be a post-judgment measure of constraint. This seemingly technical and narrowly defined question will, however, underscore a much greater debate on the theory of sovereign immunity and the scope, extent, and degree of qualifying the general rule of immunity.