Operafund Eco-Invest Sicav PLC & Anor v Kingdom of Spain

Where jurisdiction to register an ICSID award is challenged, the court should ordinarily defer issues dependent on the outcome of an appeal determining the same jurisdictional questions. It is inappropriate to decide a hypothetical issue about dividing a unitary award between co-claimants where the result may affect an absent or inadequately represented claimant.

Registration of an ICSID award under the Arbitration (International Investment Disputes) Act 1966 and CPR Part 62.21 may properly be made without notice. Authorities concerned with different enforcement procedures do not require routine inter partes hearings. A duty of full and frank disclosure applies, but it is not breached where the relevant jurisdictional objections and supporting materials were fairly disclosed.

The claimants had obtained an ICSID award against Spain and secured its registration by an order made by Cockerill J on 14 September 2021. Spain applied to set aside the order on jurisdictional and state-immunity grounds and for alleged breaches of full and frank disclosure. Schwab separately sought variation of the order so that it could enforce the award without Operafund.

The jurisdictional issues substantially overlapped with Spain’s appeal in Infrastructure Services Luxembourg SARL v Kingdom of Spain, concerning registration of another ICSID award. The central questions were whether the present issues should await that appeal, whether Schwab could enforce a single undivided award separately, and whether the claimants had failed in their disclosure duties.

1. Jurisdiction and adjournment. Spain’s jurisdictional arguments were materially dependent on the issues pending in its appeal in Infrastructure Services Luxembourg SARL v Kingdom of Spain. Those issues could affect both claimants, not merely an EU-domiciled claimant. Deciding the proposed questions in advance would therefore be hypothetical and potentially academic. Spain’s application to set aside the Registration Order was adjourned pending the Court of Appeal’s judgment.
2. Unitary award. The ICSID award ordered Spain to pay a single sum to the claimants jointly. The court declined to decide whether Schwab alone could enforce or whether the award could be partially registered in its favour. Operafund’s position had not been clearly evidenced or represented, and an order favouring Schwab could prejudice it. The issue could be considered later if the Court of Appeal’s decision made it practically relevant.
3. Procedure for ICSID registration. Registration under CPR Part 62.21 may be made ex parte, with the state then able to apply to set aside. Gold Reserve Inc v Bolivarian Republic of Venezuela concerned a different procedural regime and did not require a routine inter partes hearing for ICSID registration. The existing procedure was consistent with the 1966 Act, the CPR and the purpose of the ICSID Convention.
4. Full and frank disclosure. The claimants owed a co-existent duty of full and frank disclosure. They disclosed the material jurisdictional objections, the relevant arbitration and annulment materials, and the principal authorities and developments relied upon by Spain. There was no breach. If Spain succeeded on jurisdiction, the order would be set aside on that ground and the disclosure issue would not arise; if Spain failed, the disclosure challenge would fail.
5. Orders. The Registration Order remained in force, subject to variation by adding the words “or further order” to paragraph 2. The claimants were directed to apply for listing within 21 days after judgment in the Infrastructure Services appeal.

The judgment records that Spain obtained permission from the Court of Appeal on 5 October 2023 to appeal the judgment in Infrastructure Services Luxembourg SARL v Kingdom of Spain, with the appeal listed for June 2024. The present jurisdictional application was adjourned pending that appeal.