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

Joinder under Civil Procedure Rules 1998, rule 19.2(2)(a), requires a fact-specific assessment of whether adding the proposed party is desirable so that all matters in dispute can be resolved. Relevant considerations include whether the party is needed to address unresolved issues, whether it would materially improve their resolution, broader interests of justice, and the overriding objective. A different perspective may justify joinder, but controversy alone is insufficient. The availability of a capable existing party is relevant, although not automatically decisive. An inherent jurisdiction to permit intervention does not provide an easy route around the rules and itself requires desirability to be established. Its wider scope outside rules-based areas was doubted, obiter.

The claimants sought to enforce an ICSID award of approximately €100 million against Spain. Spain applied to set aside registration of the award, relying on CJEU authority concerning the effect in EU law of the Energy Charter Treaty and related international-law obligations.

The European Commission applied to be joined as a party or permitted to intervene. It argued that its participation could assist the court in resolving contested issues concerning Achmea, Komstroy and Micula, and could assist more generally in clarifying the law. The central issues were whether joinder was desirable under CPR 19.2(2)(a), and whether intervention should be permitted under the inherent jurisdiction if the rule was not satisfied.

1. Application dismissed. The Commission was neither joined as a party nor permitted to intervene.
2. Under CPR 19.2(2)(a), whether joinder is desirable so that the court can resolve all matters in dispute is a fact-specific question. The court should proceed from first principles, informed by the policy objective of enabling affected rights to be heard and the overriding objective. Relevant questions include whether the proposed party would resolve otherwise unresolved issues, improve resolution through a distinct perspective, serve broader interests of justice, and support the overriding objective.
3. Spain could fully advance the Commission’s proposed arguments through an expert legal team. The fact that another party can advance the same arguments is not conclusive, but it is materially relevant. No distinct or differentiated perspective, or evidence showing improved resolution, had been demonstrated. Controversy surrounding the issues did not itself make joinder desirable.
4. The overriding objective pointed decisively against joinder. Participation would increase complication and cost and risk irrelevant argument, mission creep and procedural expansion. Comity did not alter that balance.
5. The court accepted that an inherent jurisdiction to permit intervention may exist even where CPR 19.2(2) is not satisfied. The same desirability assessment led to refusal of that relief. The court observed, obiter, that the modern rules and later authorities left little scope for such an inherent jurisdiction outside rules-based areas.