Blasket Renewable Investments LLC v Kingdom of Spain

• Jurisdiction: Australia Federal only
• Judgment Date: 29 August 2025
• Neutral Citation: [2025] FCA 1028
• Date: 29 August 2025
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028

File numbers:	NSD 2169 of 2019NSD 365 of 2020NSD 449 of 2020NSD 415 of 2023
Judgment of:	STEWART J
Date of judgment:	29 August 2025
Catchwords:	ARBITRATION – international arbitration – where foreign investors obtained the benefit of arbitral awards rendered by tribunals constituted pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (ICSID Convention) against the Kingdom of Spain – where award creditor investors are nationals of current or former European Union Member States – where those investors or their relevant assignees seek recognition and enforcement of those awards in Australia under s 35(4) of the International Arbitration Act 1974 (Cth) (IAA) ; PUBLIC INTERNATIONAL LAW – foreign State immunity – where the respondent asserts immunity pursuant to s 9 of the Foreign States Immunities Act 1985 (Cth) (Immunities Act) from proceedings for the recognition and enforcement of arbitral awards in Australia – where respondent submits the position is not governed by Kingdom of Spain v Infrastructure Services Luxembourg Sàrl [2023] HCA 11; 275 CLR 292 and it consequently has not waived its immunity under s 10 of the Immunities Act by acceding to the ICSID Convention – where respondent submits the High Court decision did not concern a situation where the binding status of an award is disputed whereas the binding status of the awards is presently disputed – whether the High Court decision governs this case and if not whether the respondent has waived its immunity to jurisdiction ; PRIVATE INTERNATIONAL LAW – assignment – where two of the applicants are the assignees of the original award creditor investors – where respondent disputes that the assignees can enforce their awards in Australia – where no dispute as to validity of deeds of assignment under governing law of the deeds – issue of which law governs the assignability of arbitral awards – whether under public international law, Australian domestic law or foreign domestic law the ICSID awards or the rights of enforcement of them are capable of being assigned – whether in terms of international law assignment of awards is permitted under the ICSID Convention or under customary international law ; PUBLIC INTERNATIONAL LAW – European Union law – EU autonomous system – principle of primacy – where the Court of Justice of the EU in Republic of Moldova v Komstroy LLC [2021] 4 WLR 132 and related decisions held that intra-EU arbitration agreements are inapplicable and not binding as between EU Member States pursuant to the EU foundational treaties – where EU Member States party to ICSID arbitral awards are now faced with a conflict between complying with the terms of the awards and complying with the obligation under the EU foundational treaties to not submit disputes to extra-EU resolution – where conflict is also said to arise because payment pursuant to the awards is unlawful State aid for the purposes of EU law – where respondent submits that the conflict ought to be resolved by giving primacy to the EU foundational treaties – whether if so the consequence is that the awards are not binding on the respondent under the ICSID Convention – whether if so an assignee domiciled in the Bailiwick of Jersey is relevantly subject to EU law ; PUBLIC INTERNATIONAL LAW – treaty interpretation – where the respondent submits the consequence of intra-EU awards being not binding on it under the ICSID Convention is that Australia has no concomitant obligation under Art 54 of the Convention to enforce the award on the request of the applicants – where the respondent in the alternative contends that the same result obtains from the inter se modification of the ICSID Convention as a result of entering into the Treaty of Lisbon (2007) effected in accordance with customary international law or under Art 30 of the Vienna Convention on the Law of Treaties (1969) – whether the consequence asserted by the respondent flows from the meaning and operation of the ICSID Convention or the subsequent treaties said to effect the modification – where Australia is party only to the ICSID Convention but not the EU foundational treaties – whether intra-EU law rules have an effect on international law obligations owed to and from States parties outside the EU system CONSTITUTIONAL LAW – infringement of Ch III – where the respondent submits that ss 32 or 35(4) of the IAA are constitutionally invalid to the extent that they require the Court to recognise and/or enforce awards without looking to whether there was an agreement between the parties to submit their dispute to arbitration – whether the ICSID Secretary-General or the tribunal are impermissibly vested with Ch III judicial power as part of the arbitral enforcement regime under the IAA ; EVIDENCE – proof of international law – admissibility of expert opinion evidence – whether issue to be treated as question of fact or question of law – approaches to proof of treaties and customary international law – whether proof of EU law is an issue of international law or foreign law ; PRACTICE AND PROCEDURE – application to intervene – where European Commission applies for leave to intervene pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) – where Commission seeks to make submissions on the content of EU law and says that it is uniquely placed to do so – whether leave should be granted
Legislation:	Constitution, ss 55(xxix), 75(i), 76(i), (ii), 77(i), Ch III Acts Interpretation Act 1901 (Cth), s 15A Evidence Act 1995 (Cth), ss 136, 143, 144, 174 Federal Court of Australia Act 1976 (Cth), s 20(1A) Foreign States Immunities Act 1985 (Cth), ss 9, 10 International Arbitration Act 1974 (Cth), ss 8, 16(1), 32, 33, 34, 35, Pt IV, Sch 2 (UNCITRAL Model Law on International Commercial Arbitration) Art 36 Judiciary Act 1903 (Cth), ss 38(a), 39B, 78B, 79 ; Federal Court Rules 2011 (Cth), rr 9.09(2), 9.11, 9.12 ; Conveyancing Act 1919 (NSW), s 12 ; Delaware Limited Liability Company Act 6 Del Code Ann § 18-101 et seq Foreign States Immunities Act 28 USC § 1602 et seq United States Code (US) Title 22 § 1650a ; Statute of the International Court of Justice, Art 38(1)(c) ; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959), Art V Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966), Arts 1(2), 3, 11, 25, 26, 27(1), 36(1), 37, 41, 48, 49, 50, 51, 52, 53, 54, 55, 64, 65, 66, 69, 70 The Energy Charter Treaty, opened for signature 17 December 1994, 2080 UNTS 95 (entered into force 16 April 1998), Arts 2, 10, 26 Treaty establishing the European Economic Community, opened for signature 25 March 1957, 294 UNTS 3 (entered into force 1 January 1958) (now Treaty on the Functioning of the European Union [2009] OJ C 115/199), Arts 107, 108, 267, 344, 351, 355(5)(c), Pt 3 Title II Treaty concerning the accession of the Kingdom of Denmark, Ireland, the...