A boomerang blow to the enforcement of arbitral awards against Spain? The High Court of Australia upholds ‘recognition’ and ‘enforcement’ of a multimillion ICSID award in favour of renewable energy investor Infrastructure Services Luxembourg S.À.R.L.

Article summary

Arbitration analysis: In a judgment dated 12 April 2023, the Australian High Court has dismissed the appeal lodged by the Kingdom of Spain (‘Spain’) and upheld the recognition and enforcement of the €101m ICSID award favourable to renewable energy investor Infrastructure Services Luxembourg S.À.R.L. (‘Respondent’). The court considered that Spain had effectively waived its regime of sovereign immunity from the Australian jurisdiction under Part II of the Foreign States Immunities Act 1985 (‘FSIA’). However, immunity from jurisdiction to execute the award, a crucial and distinct concept from ‘recognition’ and ‘enforcement’ included in Part IV of the FSIA, remains intact for Spain, representing a significant setback against the Respondent. By interpreting the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’), the High Court of Australia concluded that ‘recognition’ refers to...