Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 447
In this case, the Ontario Court of Appeal discussed what constitutes proper service of a foreign state under the federal State Immunity Act (Act).
Sistem obtained an order in the Ontario Superior Court of Justice to enforce an international arbitral award it had obtained against the Kyrgyz Republic. The Court declared that the Kyrgyz Republic had an equitable interest in shares of Canadian mining company Centerra Gold Inc., which were held by a state-owned company. The Court granted an order for the seizure of the shares to satisfy the award. The Kyrgyz Republic did not participate in the hearing or the appeal, but the state-owned Kyrgyz company did. On appeal, the Kyrgyz company argued that the Kyrgyz Republic had not been properly served with the initiating documents in accordance with s. 9 of the State Immunity Act, and without proper service the application judge could not properly proceed as it did. The Court of Appeal agreed and set aside the lower Court's decision. Under s. 9 of the Act, a state may be served in any manner agreed on by the state, in accordance with an international convention to which the state is a party, or through the Deputy Minister of Foreign Affairs or a designate.
In this case, Sistem served the application by courier at the Kyrgyz Republic's embassy in Washington, D.C., based on an opinion Sistem obtained from a Kyrgyz Republic law firm that this would be in accordance with the Vienna Convention. The Ontario Court of Appeal noted that there was no provision in the Vienna Convention dealing with service, and that service on an embassy is not available as a means of effecting service on a foreign state in any event.
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