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

Registration of an ICSID award against a foreign state is an exercise of adjudicative jurisdiction to which the general immunity under the State Immunity Act 1978 applies. However, article 54 of the ICSID Convention is a prior written agreement by every contracting state to submit to the jurisdiction of other contracting states for recognition and enforcement of ICSID awards. It therefore engages the exception in section 2(2).

The submission is express and unequivocal although article 54 does not use the words “submission” or “waiver”. Its meaning follows clearly from its express language, context and purpose. Immunity from execution remains preserved by article 55.

An ICSID tribunal awarded the respondent investors €101 million against Spain. The High Court registered the award under the Arbitration (International Investment Disputes) Act 1966. Fraser J dismissed Spain’s application to set aside registration in [2023] EWHC 1226 (Comm).

Spain appealed, contending that registration engaged its general immunity under the State Immunity Act 1978 and that neither article 54 of the ICSID Convention nor the underlying arbitration brought the case within a statutory exception. Its appeal was heard with Zimbabwe’s appeal from [2024] EWHC 58 (Comm).

The central questions were whether registration exercised adjudicative jurisdiction and, if so, whether article 54 constituted a prior written submission to jurisdiction under section 2(2).

1. Spain’s appeal dismissed. Registration of an ICSID award as a High Court judgment is an exercise of adjudicative jurisdiction over the foreign state. A judge must assess authenticity and the other evidential requirements imposed by the Arbitration (International Investment Disputes) Act 1966. The apparent simplicity of that task does not make it ministerial or administrative. Section 1(2) of the State Immunity Act 1978 requires immunity to be respected even before the state appears or is served.

2. The 1978 Act is a complete statutory code. Its general immunity applies to proceedings registering ICSID awards because neither the ICSID Convention nor the 1966 Act is excluded by section 16. Section 23(3) does not assist: the Convention and the 1966 Act are not pre-commencement “matters” within that provision.

3. The decision in Micula [2020] UKSC 5 did not decide that state immunity was unavailable at registration. State immunity was not in issue there. It is a jurisdictional barrier, rather than one of the exceptional substantive defences to enforcement discussed in that decision.

4. Article 54 of the Convention is a prior written agreement satisfying section 2(2) of the 1978 Act. Its ordinary meaning requires contracting states to recognise and enforce ICSID awards without distinguishing between awards against investors and awards against states. Article 55 preserves only immunity from execution. This interpretation accords with the Convention’s object and purpose and is confirmed by the preparatory materials.

5. The requirement that treaty waiver be express does not demand use of the words “waiver” or “submission”. It is sufficient that the express words, properly construed in context, unequivocally embody an agreement to submit. Article 54 unmistakably does so. Spain therefore could not resist registration on state-immunity grounds.

6. It was unnecessary to decide whether section 9 also applied. The court nevertheless considered that section 9 requires the enforcing court to satisfy itself that the state actually agreed in writing to submit the particular dispute to arbitration. An ICSID tribunal’s jurisdictional ruling cannot itself create a valid arbitration agreement.

Newey LJ and Sir Julian Flaux agreed with Phillips LJ.

1. Court of Appeal (Civil Division): Spain’s appeal was dismissed by [2024] EWCA Civ 1257. The court held that article 54 of the ICSID Convention engaged section 2(2) of the State Immunity Act 1978.
2. Commercial Court: Fraser J dismissed Spain’s application to set aside registration of the ICSID award in [2023] EWHC 1226 (Comm).