^* [The excerpts have been reproduced from the Brief for the UnitedStates as Amicus Curiae, pp. 32-37, and the entire Supplemental Memorandum for the United States, filed with the U.S. Court of Appeals for theDistrict of Columbia Circuit on June 16, 1980, and November 7, 1980, respectively.]

³⁰ It is now established international practice that by entering into an agreement to arbitrate a dispute, a statewaives its immunity from suit. For example, Section 9 of the United Kingdom State Immunity Act 1978, c. 33, reads as follows:

(1) Where a State has agreed in writing to submit a dispute which has arise, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration. (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States.

^30a In Verlinden B.V. v. Central Bank of Nigeria, F. Supp. . TSTD.N.Y., NO. 79 Civ 1150, Apr. 21, 1980), a Dutch-corporation ntion to recognize and enforce xn United States courts foreign brought an action for anticipatory breach and repudiation of an irrevocable letter of credit established in its favor by the “*itral awards made in the territory of states who are members Central Bank of Nigeria. As one of the jurisdictional bases of suit, plaintiff urged that the Central Bank had implicitly waived o f ** Convention. Switzerland is such a state, its and tihmem unpiltayi ntbiefcfa use whtihceh cgoanvter acrti sbe etwoe etnh e thle ttSetra teo fl ocfr Neidgiet ri-a contained an arbitration clause. The district court held that that jurisdictional basis was unavailing, saying (slip op. 39) [Jlaintiff * * * has decided not to sue upon its cement agreement with Nigeria. Instead it basesits claim upon the Verlinden letter of credit. Butthat instrument, unlike the contract, is devoid ofany provision accepting foreign law for its interpretation,nor does it name any foreign tribunal forarbitration.By dictum, the district court questioned whether “asovereign state which agrees to be governed by the laws of athird-party country - such as the Netherlands - is therebyprecluded from asserting its immunity in an American court”(emphasis in original; slip. op. 41-42) citing Ipitrade, supra.- As we submit below, there is a distinction between a waiverof sovereign immunity for purposes of adjudicating a disputeab initio, and a waiver of sovereign immunity for purposes ofenforcing a judgment rendered by a foreign tribunal chosen bythe parties. The Ipitrade decision, we submit, is clearlycorrect

³¹ The Convention was adopted at New York on June 10, 1958and entered into force June 7, 1959, well before the renegotiationof the arbitration clause of the concession agreements. Switzerlandbecame a party effective August 30, 1965 and the United States effective December 29, 1970. Today over 50 states are parties.

³² / The tribunal itself consisted of a sole arbitrator chosenBy the President of the International Court of Justice. It is reasonable to assume that the President of the Court himselfan official in the United Nations system and charged with responsibility for neutral dispute settlement - would selectan arbitrator experienced in the workings of that system. Itcannot have surprised Libya that the arbitrator so selected chose as the situs of the arbitration one of the world'sprincipal centers for arbitral activities, in a state party to the Convention.

³³ / The Court stated (433 D.S. at 210-11, n. 36): “Once it Has been determined by a court of competent jurisdiction thatthe defendant is a debtor of the plaintiff, there would seemto be no unfairness in allowing an action to realize on thatdebt in a State where the defendant has property, whether ornot that State would have jurisdiction to determine the existence of the debt as an original matter.”

¹ / A copy of the judgment in the German language, togetherwith an English translation, was lodged with the Court by an order issued by the Clerk of this Court on September 10,1980; we shall hereafter refer only to the translation of the judgment (“Tr. Judgment“).

² Article V of the United Nations Convention on theRecognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, T.I.A.S. No. 6997 (“New York Convention“),reads in pertinent part as follows:

1. Recognition and enforcement of the award maybe refused, at the request of the party against whom it is invoked, only if that party furnishes to thecompetent authority where the recognition and enforcement is sought, proof that:(e) The award has not yet become bindingon the parties, or has been set aside or suspended by a competent authority of the country in which,or under the law of which, that award was made.

³ We note in passing that, unlike in the proceedings inSwitzerland, no issue of execution on the award in the United States is raised in the present posture of these proceedings.LIAMCO's complaint sought a confirmation of the award, i.e., an in personam judgment against Libya on theaward. Joint Appendix 7. To the extent that LIAMCO'sprayer also sought an order permitting attachment andexecution on such judgment (para. 2 of the prayer for relief;ibid.), the grant of such relief would have been manifestlypremature in view of the express provision of the ForeignSovereign Immunities Act, 28 U.S.C. 1610(c), which reads as follows:

No attachment or execution referred to insubsections (a) and (b) of this section shallbe permitted until the court has ordered suchattachment and execution after having determinedthat a reasonable period of time has elapsedfollowing the entry of judgment and the givingof any notice required under section 1608(e) of this chapter.

⁴ See Brief for the United States as Amicus Curiae, n. 4,and accompanying text. See also Domke, The United Nations Conference on International Commercial Arbitration, 53 Am.J. Int’l L. 414, 416 (1959) (“The burden is now * * * on the losing party to prove that the award has not become ‘binding’or has been set aside or suspended.”).

⁵ A similar declaration was made by the United States atthe time of its accession. See n. 13, infra.

⁶ As one authoritative commentator has noted, “The textand the preparatory works (Part III.C (E/CONF. 26/SR. 17 and 23 especially)) make it clear that it is not necessary thatthe award should have been declared to be enforceable according to the law, whether local or not, under which itwas made.” G. Gaja, International Commercial Arbitration - New York Convention SI.C.4 (1978) (hereafter “Gaja“).

⁷ In explaining the arguments against double exequatur,the Netherlands delegate said: “such an exequatur was an unnecessary complication, as it involved the requirementthat an arbitral award should be operative in a country in which its enforcement had not been requested. * * * Thejudge in the country of enforcement must be given complete latitude either to grant an exequatur immediately, if heconsidered that there was no reason to refuse it, or to await the outcome of proceedings for its annulment institutedin the country in which it had been made.” E/CONF. 26/SR.ll, reprinted in Gaja, supra, at p. III.C.87.

⁸ U.N. Doc. E/2822, reprinted in Gaja, supra, at p. III. A.2.16.

⁹ Id., at p. III.A.2.5.

¹⁰ U.N. Doc. E/CONF.26/SR.ll, reprinted in Gaja, supra,at p. III.C.92. In the same intervention,-id. at p. III.C.91, the Swiss delegate supported the position that the burden of proof should be on the party resisting enforcement.

¹¹ A state applies the Convention to enforcement of anaward rendered in its own territory only when some feature of the award is “not considered as domestic” in that state.For example, in some civil law countries (but not in Switzerland) an award rendered in a country's territorymight not be considered domestic if the parties were of foreign nationality or if the proceedings were governed byforeign procedural law. McMahon, Implementation of the United Nations Convention on Foreign Arbitral Awards inthe United States, 2 J. Mar. L. & Coram. 734, 739-42 (1971).

¹² Article XIV of the Convention reads as follows:

A Contracting State shall not be entitled toavail itself of the present Convention againstother Contracting States except to the extentthat it is itself bound to apply the Convention.

¹³ At the time of its accession, the United States made thefollowing declaration under Article I, paragraph 3:

The United States of America will apply theConvention, on the basis of reciprocity, to therecognition and enforcement of only those awardsmade in the territory of another Contracting State.

¹⁴ / The United States would similarly expect Switzerland to confirm and enforce awards rendered in this country.