John Ogilvie & Ardil Salem explore what SerVaas means for judgment creditors pursuing state-owned assets
If a state acquires assets through speculative debt arbitrage transactions, will those assets be available to a judgment creditor seeking to enforce the debt owed to it? Following the decision of the Supreme Court in SerVaas Inc v Rafidain Bank and Others [2012] UKSC 40, the answer is “not unless the creditor can show that the assets remain in or are intended for commercial use”; if the creditor cannot overcome this hurdle (where there is no waiver by the state), the property will be immune from execution under s 13(2)(b) of the State Immunity Act 1978 (SIA 1978). In other words, the origin of the assets in question is irrelevant to the question of whether they are currently “in use or intended for use for commercial purposes” under s 13(4) of SIA 1978. SerVaas, therefore, limits the arguments available to a party seeking to enforce a judgment debt against the assets of a state, and makes it more difficult for it to do so.
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