Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l.

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 01 February 2021
• Neutral Citation: [2021] FCAFC 3
• Date: 01 February 2021

Federal Court of Australia

Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2021] FCAFC 3

Appeal from:	Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157
File number:	NSD 329 of 2020
Judgment of:	ALLSOP CJ, PERRAM AND MOSHINSKY JJ
Date of judgment:	1 February 2021
Catchwords:	ARBITRATION – international arbitration – applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) (‘Arbitration Act’) ; PRIVATE INTERNATIONAL LAW – foreign state immunity – where foreign state respondent asserts sovereign immunity – interaction between s 9 of the Foreign States Immunities Act 1985 (Cth) (‘Immunities Act’) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) which is given the force of law by s 32 of the Arbitration Act – where s 9 of the Immunities Act provides that a foreign state is immune from the jurisdiction of the courts of Australia in a proceeding – where s 10 of the Immunities Act provides that a foreign state is not immune in a proceeding in which it has submitted to jurisdiction whether by agreement or otherwise – whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction within the meaning of s 10 of the Immunities Act ; PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the ICSID Convention – whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award – meaning of recognition and enforcement in Art 54 and execution in Art 55 – where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution
Legislation:	Foreign States Immunities Act 1985 (Cth) Pts II, IV; ss 3, 7, 9, 10 International Arbitration Act 1974 (Cth) Pt IV; ss 32, 34, 35 Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) r 36.32 ; 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) Convention on the Settlement of Disputes between States and Nationals of Other States. Opened for signature 18 March 1965. 575 UNTS 159 art 50, 51, 54, 55, 64. (entered into force 14 October 1966) The Energy Charter Treaty. Opened for signature 17 December 1994. 2080 UNTS 95 art 26. (entered into force 16 April 1998) UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended on 7 July 2006) Vienna Convention on the Law of Treaties. Opened for signature 23 May 1969. 1155 UNTS 331 arts 4, 33. (entered into force 27 January 1980)
Cases cited:	Benvenuti & Bonfant v People’s Republic of the Congo (Cour d'appel, Paris, 26 June 1981) 1 ICSID Reports 368; 108 Journal du Droit International 843 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Lahoud v The Democratic Republic of Congo [2017] FCA 982 Liberian Eastern Timber Corporation (LETCO) v Liberia, (United States District Court for the Southern District of New York, 12 December 1986) 2 ICSID Reports 383 Micula v Romania [2020] UKSC 5; 1 WLR 1033 O’Brien v Komensaroff [1982] HCA 33; 150 CLR 310 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; 247 CLR 240 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 Société Ouest Africaine des Bétons Industriels (SOABI) v Senegal (Cour de cassation, 11 June 1991) 2 ICSID Reports 341; 118 Journal du Droit International 1005 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 Thiel v Federal Commissioner of Taxation [1990] HCA 37; 171 CLR 338 Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276; 201 FCR 535 University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68; Kronke H, Nacimiento P, Otto D, Port NC (Eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer Law International, 2010) Schreuer CH, The ICSID Convention: A Commentary (2nd ed, Cambridge University Press, 2009) van den Berg AJ, The New York Arbitration Convention of 1958 (Kluwer 1981)
Division:
Registry:
National Practice Area:
Sub-area:	International Commercial Arbitration
Number of paragraphs:	118
Date of hearing:	24 August 2020
Counsel for the Appellant:	Mr I M Jackman SC with Mr M R Tyson
Solicitor for the Appellant:	Squire Patton Boggs
Counsel for the Respondents:	Mr B Walker SC with Mr J Hogan-Doran and Mr C Brown
Solicitor for the Respondents:	Norton Rose Fulbright
Counsel for the Intervener:	Mr K Dharmananda SC with Mr L Firios
Solicitor for the Intervener:	Lipman Karas

Table of Corrections
4 March 2021	In the quoted extract in paragraph 68, ‘international law’ has been replaced with ‘an international award’.
9 July 2021	In the penultimate line of paragraph 7, the word ‘not’ has been inserted into the text in parentheses, between the words ‘there’ and ‘be’.

ORDERS

		NSD 329 of 2020
BETWEEN:	KINGDOM OF SPAIN Appellant
AND:	INFRASTRUCTURE SERVICES LUXEMBOURG S.A.R.L. First Respondent ; ENERGIA TERMOSOLAR B.V. Second Respondent

order made by:	ALLSOP CJ, PERRAM AND MOSHINSKY JJ
DATE OF ORDER:	1 February 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 1, 2, 3 and 4 of the orders made on 24 February 2020 are set aside.

3. The appeal is stood over to a date to be fixed for further argument on the form of order for the recognition of the award and otherwise for the disposition of the appeal including on the question of costs.

4. The parties should confer and formulate draft orders providing for the delivery of written submissions on these issues with a page limit of 10 pages per submission.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. I have read the reasons for judgment to be published of Perram J. I agree with the orders that his Honour proposes. Subject to the following largely by way of elaboration, I agree with his Honour’s reasons. The orders to which the applicant was entitled were those that properly reflected the outcome of a recognition proceeding and that did not involve any form of execution contemplated by Arts 54(3) and 55 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and Part IV of the Foreign States Immunities Act 1985 (Cth). I agree that the parties should...