40 The restriction upon Clause 10(1) (“arbitration in the United Kingdom, or according to United Kingdom law”) was deleted in the House of Commons (see NML Capital Ltd v Republic of Argentina [2011] 2 AC 495 at [90]), resulting in what is now s 9(1) of the UK Act. In light of this deliberate divergence from the position taken in the European Convention, the insertion of s 22(2) of the UK Act seemed to me quite intentional and, as the AR suggested, arguably justified a “capacious” reading of s 14 of the UK Act. It would appear that s 22(2) of the UK Act was calibrated to cover inter alia the introduction of enforcement proceedings for arbitral awards in the UK Act. Indeed The Supreme Court Practice 1997 vol 2 (Richard Scott V-C gen ed) (Sweet & Maxwell, 1996) states at para 4671 that the European Convention was “not incorporated in the statute and it is doubtful whether it would be at all helpful or proper to refer to [it] in aid of the interpretation of the [UK SIA]”. It must be remembered that when enacting the Act, Parliament incorporated s 2(2), which is in pari materia with s 22(2) of the UK Act.

41 Next was the question of whether a leave order constitutes a “document required to be served for instituting” enforcement proceedings. As the AR rightly observed, s 14(1) of the Act does not refer to “originating process”, but to a “writ or other document required to be served for instituting proceedings”. In the words of Hamblen J, the wording of s 14(1) is “general and unqualified” and “not limited to proceedings seeking judgment” (PCL at [30]).

42 In Embassy of Brazil v de Castro Cerqueira [2014] ICR 703, Lewis J stated at [23] that “the purpose of [s 12 of the UK Act] is to provide for a means by which a state can be given notice of proceedings against it”. Fox and Webb in The Law of State Immunity ([23] supra) state at p 174 that:

43 The same text reiterates at p 231 that s 12 exists “clearly to ensure that the foreign State has adequate time and opportunity to respond to the conduct of proceedings in the English court of whatever nature which affect its interests”. The same rationale applies to a leave order, since the originating summons itself is not served. Even though it is not an originating process, the leave order will often be the first hint that the respondent State has of the impending enforcement proceedings in Singapore, particularly if the award is a foreign one (see also Hamblen J’s observation in PCL at [40]).

44 The important distinction in s 14 is not between originating processes and non-originating processes as a matter of form, but between the “institution” of new proceedings (of which the State is unaware) and the continuation of ongoing proceedings (of which the State already has notice). In the former case, the State must be notified through the official channel stipulated in s 14. After it has notice of the proceedings, the procedure for service of other documents need not strictly comply with s 14 any longer. It is crucial to remember that the trigger under s 14(1) for the institution of proceedings is the requirement of service and not the character of the document that has to be served. Fox and Webb note in The Law of State Immunity at p 11 that “[s]ervice of process is a first stage in the institution of proceedings”, by which “the defendant is made aware of the claim, of the proposed court to adjudicate it, and of his required presence to answer the claim”. As I noted at [25] above, under O 69A r 6(2) of the Rules of Court (and likewise UK CPR 62.18(8)), it is the leave order which must be served for enforcement proceedings to be instituted. I thus took the view that the Order in this case had to be served in accordance with the procedure set out in s 14 of the Act, notwithstanding the inapplicability of O 11 r 7.

45 This accorded with the underlying purpose of s 14. The two-month time period in s 12 serves to acknowledge “the reality that states do take time to react to legal proceedings”. It is not disproportionately generous, since often “an award will be made in one country but enforcement may be sought elsewhere, perhaps in a number of jurisdictions, where assets are or are thought to be located” (Norsk Hydro at [25(4)]). I thus agreed with the reasoning at [19] of the AR’s GD that:

46 It is true that enforcement of an arbitral award cannot be said to take a respondent State by surprise, since it would have participated in the arbitral proceedings. However, different considerations come into play when a State is faced with the potential enforcement of an arbitral award against it in a particular jurisdiction, as compared to the considerations at play in the underlying arbitral dispute. The grounds for setting aside an award at the seat of jurisdiction and for refusing enforcement in another jurisdiction are different, and Singapore courts clearly recognise the right of a party to elect between the ‘active’ remedy of setting aside at the seat of arbitration and the ‘passive’ remedy of resisting enforcement elsewhere: PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 at [71].

47 The appellants argued that the Kingdom clearly already had notice of their intention to enforce the award. However, the question was not whether the Kingdom had notice of the application to enforce as a matter of fact, but whether it had been afforded the procedural safeguards to which it was entitled under s 14 of the Act. That was a matter of law. The appellants could not rely on their own improper service to argue that the Kingdom had thereby been notified of their application and they no longer needed to comply with s 14(1) of the Act. The appellants were not disenfranchised of the benefits under the final costs award. They were simply compelled to comply with the method of service under the Act in order to achieve them. In this regard, it was not apparent to me why the appellants had been so resistant to doing just that, particularly in the face of the issues that they had encountered with service.

48 Finally, if the appellants are right, it would seem that there are no clear ground rules for effecting service of leave orders on a sovereign. As noted earlier, the sovereign has no place of residence or registered office like a lay defendant. The appellants’ futile efforts at service illustrated the difficulties of not having a clear set of ground rules. The absence of ground rules causes uncertainty in an area that demands sensitivity and diplomacy. It seemed entirely logical to therefore conclude that such ground rules reside in s 14(1) of the Act. I have developed this point further in the discussion that follows on the omission of O 11 r 7 from O 69A r (3) which, as I have noted earlier, is the fulcrum of the appellants’ arguments.

49 For the foregoing reasons I concluded that s 14 of the Act did apply to a leave order, and it was therefore irrelevant that the Rules of Court did not prescribe this procedure in O 69A r 6(3). Section 14(1) was clearly there and meant to be observed scrupulously. However, even accepting arguendo that the appellants were right to have regard to the Rules of Court, it quickly became clear that the appellants’ position was untenable from that angle as well.

50 In the view of counsel for the appellants, O 11 r 7 of the Rules of Court and s 14 of the Act both apply only to originating processes. O 69A r 6(2) stipulates that a leave order (which is not an originating process) must be served on the debtor, but the procedure for such service would be unclear as regards service on a State, since there is no rule prescribing the procedure for service of a leave order on a State. If counsel for the appellants was right to say that there is no difference between service of a leave order on a debtor in a foreign State and on a State, the applicable provision being O 69A r 6(3), then service in accordance with O 11 rr 3, 4 and 6 would be permissible on a State. However, all three rules have no application to service of leave orders on a State. This would be a significant lacuna in Singapore’s legislative infrastructure as there is no provision in the Rules of Court that regulates service of leave orders on a State. Recognising this anomaly, counsel for the appellants tried to plug the lacuna by pointing to the third of the three options for service provided in O 69A r 6(2), which allows for service of the leave order “in such other manner as the Court may direct” (this is the first difference between the UK and Singapore positions, see [31(a)] above). With respect, this could not be right.

51 First, I did not think that O 69A r 6(2) could be used in this way. It seemed to me that O 69A rr 6(2) and 6(3) are alternatives, r 6(2) applying to service of a leave order within jurisdiction and r 6(3) applying to service out of jurisdiction. The judicial discretion in O 69A r 6(2) appeared to be a residual power to customise service within jurisdiction where the first two methods (ie, personal service and leaving a copy at the debtor’s place of abode or business) proved ineffective or dissatisfactory for some reason. O 69A r 6(3), on the other hand, subjects the service of leave orders out of jurisdiction to O 11 rr 3, 4 and 6. Service of a leave order out of jurisdiction was not intended to be a matter of freestanding judicial discretion under r 6(2), but was to be separately governed by the rules pertaining to service abroad (ie, O 11 rr 3, 4 and 6). This is clear from the following observations:

(a) Under O 69A r 6(3), the service of leave orders out of jurisdiction is governed by O 11 rr 3, 4 or 6, which do not allow for the court to customise service. It would therefore have been strange and indeed not logical for the Rules Committee to have intended the court to be able to customise service of leave orders out of jurisdiction under O 69A r 6(2). Obviously the intent was for service of leave orders out of jurisdiction to replicate the procedure for service of originating processes out of jurisdiction.

(b) The first two modes of service under O 69A r 6(2) (delivering a copy to the debtor personally and sending a copy to his usual or last known place of abode or business) are applicable only to lay defendants. It followed from an application of the ejusdem generis rule that the third category of service (ie, such manner as the court may direct) must also be read with reference to lay defendants. Since the first two modes in O 69A r 6(2) are clearly concerned with lay defendants, it would be counter-intuitive and contrived to interpret only the third mode as impliedly extending to service on sovereigns.

(c) Similarly, the first two modes of service in O 69A r 6(2) only apply to service within jurisdiction. There is no reason to think that the Rules Committee would have intended these to apply to service out of jurisdiction, given that O 11 r 3, which relates to service out of jurisdiction, states that service need not be personal so long as it complies with the laws of the jurisdiction of service. Hence it is also contrived to interpret the third mode of service in O 69A r 6(2) as applying to sovereign States.

(d) If the Rules Committee had intended the courts to freely configure the method of service of leave orders out of jurisdiction – which was what the appellants urged me to conclude – there would have been no need to enact O 69A r 6(3). Nor could it be said that the court’s freedom to configure service in O 69A r 6(2) was simply to be read subject to r 6(3) in the case of service abroad, because O 69A r 6(3) is in some ways broader than O 69A r 6(2). For example, pursuant to O 11 r 3 the leave order need not be served personally. It may instead be served by any method specifically authorised by the law of the foreign State for the service of foreign process, or via a consular authority (see Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another [2015] 4 SLR 625 (“Humpuss”) at [59]). Such options are obviously unavailable under O 69A r 6(2). Evidently, O 69A rr 6(2) and 6(3) prescribe separate regimes for service of leave orders within and out of jurisdiction respectively.

52 As such, I was not convinced that O 69A r 6(2) was intended to apply to the service of leave orders out of jurisdiction in the first place.

53 This view was supported by the legislative development in the UK. There was a period of about six years, from 1996 to 2001, when O 73 r 31 of the UK’s Rules of the Supreme Court (the predecessor to CPR 62.18) provided both for service of leave orders “in such other manner as the court may direct”, as well as service of leave orders on a foreign State by official channels pursuant to O 11 r 7. Clearly, the judicial discretion to configure the method of service did not apply to service on a foreign State, which had to be effected in accordance with O 11 r 7. The fact that both were present in O 73 r 31 for a period of time suggests that the judicial discretion to configure service was never meant to extend to service on a sovereign. Similarly, I did not think that the judicial discretion in our O 69A r 6(2) was intended to be used for O 11 r 7-type situations.

54 Second, it was highly unlikely that Parliament in enacting the Act, and the Rules Committee in drafting O 69A, would have left the procedure for service of leave orders on foreign States – which should be a matter of political diplomacy and sensitivity – to the discretion of judges and the efforts of individual parties. The improbability of such a result becomes apparent when one considers the difficulties that a court would face in attempting to customise service in such a case. Should it, for example, direct the leave order to be served on the State’s solicitors personally or even by substituted service (as the appellants sought here)? This raises a host of other issues. The solicitors’ retainer might not extend that far. Would such service even be be consistent with the mode of service in the sovereign State in question, on the assumption that its solicitors were located there? What about service on the Attorney-General of the State? That surely could not be in accordance with the laws of a sovereign State as a general proposition: I doubted that any sovereign State would contemplate service otherwise than through diplomatic channels. An incorrect service could lead to potentially huge repercussions. Such mode of service would probably fall foul of O 11 rr 3(2) and (3).

55 The difficulty of identifying a suitable mode of service was illustrated by the facts of the present case. Even if I agreed that I could use O 69A r 6(2) to stipulate the manner of service on the Kingdom, there was nobody on whom I could have ordered the Order to be served. Rajah & Tann did not have instructions to accept service. Nor did the Lesotho firm of Webber Newdigate, which had represented the Kingdom in the arbitration. The appellants submitted that the Kingdom had “agreed” to accept service on Webber Newdigate because the terms of Webber Newdigate’s powers of attorney were broad enough to cover the present proceedings, and hence s 14(6) of the Act exempted the appellants from having to comply with s 14(1). The appellants’ reading of Webber Newdigate’s retainer was self-servingly generous. Webber Newdigate was empowered to do whatever the Kingdom might or could do only in respect of OS 492 and the arbitration. The enforcement proceedings in OS 95 were procedurally and substantively distinct. Moreover, what should the court do in a case where there were no powers of attorney to begin with, or if they did not include acceptance of service? It was perhaps unsurprising that these issues and difficulties presented themselves, because we were speaking about service on not any ordinary defendant, but one which is a sovereign. Such difficulties by and large do not arise in the case of service on lay defendants, and plainly showed that the discretion in O 69A r 6(2) was not intended for service on foreign States. On the contrary, it was quite clear that the court’s discretion to stipulate the manner of service in O 69A r 6(2) must have been intended for service on lay defendants, in respect of whom it is often necessary for the court to tailor the service method to the circumstances of the individual defendant.

56 Third, this approach would be cumbersome and impractical. It must be recalled that leave is not required to serve a leave order out of jurisdiction: O 69A r 6(3). If counsel for the appellants was right, that would mean that in every case where the court made a leave order which had to be served on a State, the creditor would have to specially seek directions from the court as to how the leave order should be served. The judicial discretion in O 69A r 6(2) would not simply be a residual discretion to be resorted to when the usual methods of service were not feasible, but the first port of call as and when a leave order was granted against a foreign State. I seriously doubted that the Rules Committee, having dispensed with the need for leave to serve a leave order out of jurisdiction, intended the court to have to spell out directions for service on such an ad hoc and haphazard basis in a given case. Such a result would be counter-productive.

57 Fourth, such an approach would be inconsistent with how service of other documents out of Singapore is effected. The procedure for service of originating processes on defendants in foreign States is governed by O 11 rr 3, 4 and 6. The service of leave orders on debtors in foreign States is subjected to these same rules pursuant to O 69 r 14(3) (in respect of awards under the Arbitration Act (Cap 10, 2002 Rev Ed)) or O 69A r 6(3) (in respect of awards under the IAA), as the case may be. The service out of Singapore of any summons, notice or order is also subject to O 11 rr 3, 4 and 6 pursuant to O 11 r 8(3). The service of originating processes on foreign States is controlled even more strictly by O 11 r 7. It could not be that the service of leave orders on foreign States was intended to be totally exempt from any such control and left to the court’s direction under O 69A r 6(2). There was no apparent reason for this to be the case, when service of a leave order is evidently to be treated the same as service of originating process under O 11 rr 3, 4 and 6. If a leave order that is to be served out of jurisdiction is to be treated for the purpose of service as subject to the same requirements as an originating process, and service of an originating process on a sovereign has to conform to s 14(1) and O 11 r 7, it was quite difficult to comprehend why service of a leave order on a sovereign, as opposed to a lay defendant, should be given a different treatment. The underlying principle must surely be that “[s]ervice of the order for enforcement out of jurisdiction … must comply with the methods for service of originating process stipulated under the Rules of Court” (see Chan Leng Sun, Singapore Law on Arbitral Awards (Academy Publishing, 2011) at para 5.19; see also para 5.76).

58 Finally, it was clear to me that the omission of O 11 r 7 from O 69A r 6(3) was nothing more than an oversight. The old O 69 r 7 (the predecessor of O 69A r 6(3)) preceded O 11 r 7 and was, probably for reasons unique to the limited role of arbitration at the time, never amended to refer to O 11 r 7 when it came into force. This omission was carried through into O 69A when it was enacted to complement the enactment of the IAA, and that oversight has not been rectified since. This was clear from the legislative history of the provisions, which I set out in detail below.

59 When the Rules of Court were first enacted in 1970, the Act and IAA had not yet come into existence. Each of the rules currently found in O 11 had a predecessor in the 1970 edition, except for O 11 r 7. The 1970 Rules did not appear to have contemplated the service of process on a foreign State (save for the limited O 11 r 7 of the 1970 Rules, now O 11 r 5 of the current Rules), only service on defendants in foreign States. Arbitration was at that time governed by the Arbitration Act (Cap 16), renamed from the Arbitration Ordinance 1953, which drew little distinction between domestic and international arbitrations (see Arbitration in Asia (Michael J Moser, gen ed) (LexisNexis, 2002) Binder 2, Division IX at para 1). There was no O 69A, but O 69 (captioned “Arbitration proceedings”) stipulated the procedure for applications under the old Arbitration Act and thus straddled both domestic and international arbitrations. O 69 r 5 alluded briefly to leave to enforce domestic awards and O 69 r 6 catered for the registration of awards under the Reciprocal Enforcement of Judgments Ordinance, but O 69 did not specify any procedure for the enforcement of international awards. In 1979, the Act was enacted.

60 In 1982, a new O 69 r 7 was inserted into the Rules of Court, which provided for the enforcement of awards under s 20 of the old Arbitration Act. This new rule was the first predecessor of what is now O 69A r 6. There was, at this time, still no equivalent of what is now O 11 r 7 and no O 69A (as O 69 still applied to both domestic and international arbitrations). O 69 r 7 provided for applications for leave to enforce an award to be made ex parte, subject to the court directing an originating summons to be issued. O 69 r 7(4) was identical to what is now O 69A r 6(2), requiring the leave order to be served on the debtor by any of the three means stated at [31(a)] above. O 69 r 7(5) stated, “Service of the order out of the jurisdiction is permissible without leave, and Order 11, Rules 5, 6 and 8 [later amended to Rules 3, 4 and 6] shall apply in relation to such an order as they apply in relation to a writ.” O 69 r 7(5), which ultimately evolved into what is now O 69A r 6(3), did not refer to any O 11 rule for service on a State because no such rule existed at the time.

61 It was only in 1991 that O 11 r 7 was inserted by the Rules of the Supreme Court (Amendment No 3) Rules 1991 (GN No S 532/91) to give effect to the Act (see Jeffrey Pinsler, Civil Justice in Singapore (Butterworths Asia, 2000) at p 197). O 11 r 7 was in pari materia with the then O 11 r 7 of the UK Rules of the Supreme Court, which was enacted in 1980 to give effect to the UK Act. It is not apparent why O 11 r 7 was inserted so long after the Act had been in force. However, it was inserted around the same time that O 11 underwent substantial amendments in the wake of the controversial decision of Ong & Co Pte Ltd v Chow Y L Carl [1987] SLR(R) 281 (“Ong & Co”) (see Humpuss at [37]–[39]). While the other amendments to O 11 liberalised the service of process out of jurisdiction (see Humpuss at [38]), allowing service in whatever way was permitted by the law of the foreign jurisdiction for service of its domestic process, O 11 r 7 did the opposite, ‘carving’ out special procedures to be complied with where service was to be effected on a foreign State. This was obviously necessary as the Rules of Court, being subsidiary legislation, had to provide a mode of service that was in conformity with s 14(1) of the Act.

62 However, strangely, no amendments were made to O 69 r 7, in particular r 7(5). This appears to have been an oversight; investor-state arbitration was only just beginning to take flight and it might not have been apparent that provision needed to be made to address service of a leave order on a State. (The first International Investment Agreement (“IIA”) was entered into in 1959 and Singapore entered into its first IIA in 1966. However, investment treaty arbitration only began to grow rapidly in the 1990s, following the “uncertainty caused by decolonisation and robust assertions by newly independent states over natural resources during the 1960s and 1970s”: see Sundaresh Menon & Denis Brock, Arbitration in Singapore: A Practical Guide (Sweet & Maxwell, 2014) at paras 20.006 and 20.007, as well as Petr Polášek and Sylvia T Tonova, “Enforcement against States: Investment Arbitration and WTO Litigation” in WTO Litigation, Investment Arbitration, and Commercial Arbitration, Global Trade Law Series, Volume 43 (Jorge A Huerta-Goldman et al, eds) (Kluwer Law International, 2013) p 356.)

63 On 31 October 1994, the IAA was enacted with effect from 27 January 1995, paving the way for the dual track arbitration regime that now prevails in Singapore. Shortly after, on 20 January 1995, O 69A was inserted into the Rules of Court, likewise to take effect from 27 January 1995. O 69A r 6(3) was a word-for-word replication of O 69 r 7(5) (see [59] above). In 2001, the old Arbitration Act was repealed and the current AA enacted, and O 69 was updated in 2002 to reflect the amendments.

64 This excursion into the history of the Rules of Court shows that O 69A was enacted to complement the IAA. They were to take effect from the same date. When O 69A r 6 was enacted in January 1995, it adopted the language of O 69 r 7 almost without amendment. In fact, O 69A r 6(3) adopted the language of O 69 r 7(5) (now O 69 r 14(3)) wholesale, stating that service out of jurisdiction of a leave order would have to comply with “Order 11, Rules 3, 4 and 6”. I have noted that O 11 r 7 was not included in O 69 r 6(3) simply because it did not exist at the time that O 69 r 7 was enacted ([59] above), and when it was introduced, O 69 r 7 was not revised to make reference to it. As O 69 r 7(5) did not make reference to O 11 r 7, unsurprisingly O 69A r 6(3), being its carbon copy, also did not make reference to it. It is very likely that the draftsmen, when borrowing the language of O 69 in drafting O 69A, overlooked the fact that O 11 r 7 had been inserted without amending O 69 r 7(5) at the same time to make reference to it. Given the circumstances, it seemed probable that the omission of O 11 r 7 from O 69A r 6(3) was accidental, not intentional. Counsel for the appellants’ attempt to argue that the omission of O 11 r 7 from O 69A r 6(3) reflected an intention to depart from the UK position made too much of what was in all likelihood an oversight.

65 It is also worth noting that, before 2002, the application for a leave order would have been made by originating summons inter partes, except in cases of urgency. It was only in the Rules of Court (Amendment No 2) Rules 2002 (GN No S 241/2002) that the words “may be made ex parte” were inserted into O 69A r 6(1). So even though the leave order was not subject to the provisions of O 11 r 7, the application for leave commencing the enforcement proceedings would have been brought to the debtor State’s attention by way of service of the originating summons under O 11 r 7. It was not clear why the decision was made to allow such applications to be made ex parte, although Singapore Civil Procedure 2017 vol 1 (Foo Chee Hock ed) (Sweet & Maxwell Asia, 2017) states at 69A/6/1 that the amendment “allow[ed] applications for leave to enforce an arbitral award to be made ex parte, as is consistent with the equivalent provision in O.69, r.14(1)”. I did not think the intention could have been to dispense with the prescribed procedure for service as regards enforcement proceedings entirely by making an application that was inter partes ex parte. All that had changed was that it was now the leave order, rather than the originating summons, which had to be served for the enforcement proceedings. Hence it was the leave order which had to be served in accordance with s 14(1).

66 The appellants further raised the argument in written submissions that s 14 of the Act did not apply because the Kingdom had waived its immunity, either by agreeing to arbitration under s 11 of the Act or by submitting to jurisdiction under s 4. On this view, s 14 applied only to those proceedings from which a State is immune. Since the Kingdom was allegedly not immune from the enforcement proceedings by virtue of ss 4 and/or 11, the appellants need not comply with s 14. However, counsel for the appellants did not press this point in oral submissions, and for good reason. It was obvious that this interpretation could not be correct. If a State is immune, it is not amenable to the jurisdiction of the Singapore courts in the first place. There would be no point instituting proceedings against the State which is immune, much less serving process in accordance with s 14 of the Act. It is precisely when the State is not immune that service in accordance with s 14 of the Act becomes important. More to the point, s 14 of the Act applies to the service of process on States in general, notwithstanding any arguments of immunity that may be made in the substantive application. This is evident both from the structure of the Act as well as an understanding of the purpose of s 14. A perusal of the Act reveals the following structure:

(a) Section 3 is under the heading of “Immunity from jurisdiction” and establishes a general immunity from jurisdiction.

(b) Sections 4 to 13, which are grouped under the heading “Exceptions from immunity”, establish specific exceptions to s 3.

(c) Sections 14 and 15, which are grouped under the heading “Procedure”, establish the procedure to be followed for instituting proceedings against a State.

(d) Sections 16 to 19 are supplementary provisions.

This mirrors Lord Diplock’s description of the UK Act in Alcom Ltd (see [16] above).

67 Section 14 clearly pertains to procedure, and not to jurisdiction or immunity from jurisdiction. It makes no mention of immunity and there is no reason it should be read to apply only to immune States (or, for that matter, States which are not immune). The purpose of s 14 is to ensure that the foreign State has adequate time and opportunity to respond to the conduct of proceedings (see [23] above), and that presumably includes time to consider potential defences in the proceedings, which may include State immunity. To say that s 14 should only apply to States which are immune or not immune requires the court to pre-judge the issue of immunity, which is properly left to the State to raise after service has been effected. Whether a State comes under the exceptions to immunity in ss 4 to 13 of the Act can be an extremely involved question, and it would seriously delay proceedings if the court were required to determine that issue prematurely – without the benefit of the State’s submissions – at the stage of service of process. It would also be a duplication of effort for the court to consider State immunity both at the service stage, on an ex parte basis, as well as in the substantive application. Of course if the State does not eventually enter an appearance then the court may have no choice but to consider whether the State is immune, and give effect to that immunity if found to exist: s 3(2) of the Act. But it would not do for service of a leave order to be bogged down by such considerations at the outset, particularly when there is no requirement for leave to serve the leave order out of jurisdiction.

68 The AR referred to this point as his third reason for his conclusion, although in my view it was not so much a justification for interpreting s 14(1) to apply to a leave order as it was a consequence of it. Section 2(2)(b) of the Act states that, in the Act, “references to entry of appearance and judgments in default of appearance include references to any corresponding procedures”.

69 Section 2(2)(b) thus reconciles the provisions of s 14 with the different terminology used to describe the institution of enforcement proceedings by service of a leave order. To rely on it in support of the foregoing interpretation of s 14(1) is to place the cart before the horse. The anterior question must be whether s 14(1) is intended to apply to a leave order. It is only if s 14 does extend to such an order (which, for the foregoing reasons, I think it does) that a “corresponding procedure” must accordingly be read to extend to the time for filing an application to set aside such an order.

70 It is for this reason that I do not agree with Stanley Burnton J’s conclusion in AIC Limited, which the AR referred to at [18] of the AR’s GD. In AIC Limited, the defendants were ordered to pay a sum of money to the claimant by the Federal High Court of Nigeria. The claimant obtained an order registering the Nigerian judgment in the UK. The defendants applied for an order extending the time to apply to set aside the registration order to two months from the date of service pursuant to s 12(4) of the UK State Immunity Act. Stanley Burnton J stated at [23]:

71 This conflicts with Norsk Hydro, which was not cited in AIC Limited. In Norsk Hydro, “entry of appearance” was clearly equivocated with an application to set aside an order granting leave to enforce. Moreover, Stanley Burnton J’s approach appears too literal and narrow; s 2(2)(b) (equivalent to s 22(2) of the UK Act) must exist precisely to cater to such differences as Stanley Burnton J identified. In my view, the correct approach is to first ask whether the proceedings in question are intended to fall within the scope of s 14. The stages of the proceedings in question cannot be expected to be identical to the steps of entry of appearance and judgment in default in s 14. A corresponding provision need not necessarily be the same in texture and terminology. That would defeat the purpose of s 2(2)(b) of the Act. I therefore prefer the approach in Norsk Hydro.

72 Stanley Burnton J’s reasoning in AIC Limited was recently criticised by Teare J in Gold Reserve at [64]. Teare J took the view that there need not be total equivalence between the stages of the proceedings in question and the individual stages of service, entry of appearance and judgments in default of appearance envisaged in s 12 of the UK Act. The individual sub-sections of s 12 made “special provision with regard to the questions of service, entry of appearance and judgments in default of appearance” (at [64]). But if the particular proceedings did not involve any of those steps, the special provision of s 12 relating to that step would not apply. Just because there was no “corresponding procedure” for, say, judgments in default of appearance did not mean that the manner of service stipulated in s 12(1) was thereby rendered inapplicable. This seems to me to be correct.

73 I thus agreed with the view at [18] of the AR’s GD that “the reference to entry of an ‘appearance’ in ss 14(2) and 14(3) of the State Immunity Act does not require that s 14 apply only to documents in response to which an appearance must be entered”. Section 14(1) applied to service of the Order.

74 In the circumstances, I agreed with the AR’s decision and dismissed RA 91. Since RA 91 was an ex parte appeal and the Kingdom chose not to participate (see [9] above), I made no order as to costs. I should add that while Rajah & Tann on behalf of the Kingdom understandably declined to participate in RA 91, their assistance would undoubtedly have benefitted me in coming to a landing on an interesting and challenging issue.