Infrastructure Services Luxembourg S.À.R.L & Anor. v Kingdom of Spain

Recognition of an authentic ICSID award under the Arbitration (International Investment Disputes) Act 1966 is ordinarily confined to registration and does not permit the Commercial Court to reconsider the tribunal’s jurisdiction, the merits, procedural fairness or matters allocated to ICSID Convention organs. EU law decisions concerning intra-EU investment arbitration do not override the United Kingdom’s separate treaty obligations under the ICSID Convention and the Energy Charter Treaty, nor do they alter the clear domestic effect of the 1966 Act. Accession to the ICSID Convention and the treaty’s arbitration provisions constitute written agreements sufficient to engage the arbitration exception to state immunity. A registration order may properly be made without notice, subject to the respondent’s liberty to apply.

Spain applied to set aside an order made by Cockerill J on 29 June 2021 registering an ICSID award in favour of Infrastructure Services Luxembourg S.À.R.L and Energia Termosolar B.V. The award arose from an intra-EU arbitration under the Energy Charter Treaty concerning investments in Spanish solar-energy projects. Spain relied on state immunity, absence of a valid written agreement to arbitrate, invalidity of the award, the CJEU decisions in Achmea and Komstroy, and alleged non-disclosure on the ex parte registration application.

The application required consideration of the recognition regime under the ICSID Convention and the Arbitration (International Investment Disputes) Act 1966, the State Immunity Act 1978, and the proper scope of the Commercial Court’s review.

1. Application dismissed. There were no grounds to set aside the registration order or refuse recognition of the award.
2. Under Articles 53 to 55 of the ICSID Convention and sections 1 and 2 of the Arbitration (International Investment Disputes) Act 1966, the court’s function is ordinarily confined to ascertaining authenticity and giving the award the force and effect prescribed by the Act. It may not re-examine the tribunal’s jurisdiction, merits, fairness or procedural propriety, or grounds allocated to ICSID Convention organs.
3. The possible existence of additional defences is confined to exceptional or extraordinary circumstances recognised in relation to final judgments of English courts, and such defences must not overlap with Convention grounds concerning interpretation, revision or annulment. No such circumstances arose.
4. The reasoning in Achmea probably applies to the ECT as a matter of EU law, and Komstroy confirms the CJEU’s view that Article 26 ECT cannot operate intra-EU. Those decisions do not, however, give EU law primacy over the United Kingdom’s pre-existing multilateral obligations under the ICSID Convention or the ECT, and cannot be used to construe the 1966 Act contrary to its terms.
5. Articles 54 ICSID Convention and 26 ECT constitute prior written agreements for the purposes of sections 2(2) and 9(1) of the State Immunity Act 1978. Spain therefore had no adjudicative immunity in proceedings relating to recognition of the award. Section 9(1) is not confined to commercial arbitration.
6. The award was authentic and validly made. Jurisdictional objections had been considered by the ICSID tribunal and the annulment committee, whose jurisdiction to determine those matters was exclusive under the Convention.
7. Registration of an ICSID award may properly be made without notice under CPR Part 62.21, with liberty to apply. The claimants had sufficiently disclosed Spain’s jurisdictional and immunity arguments. The later Komstroy judgment and other matters relied upon did not amount to material non-disclosure.
8. The application therefore failed on both jurisdiction and non-disclosure. The court warned that future applications of this kind should not ordinarily involve a lengthy rehearing of objections already determined under the ICSID Convention.

First-instance decision on Spain’s application to set aside an order registering an ICSID award. The judgment does not state any appeal from the present decision.