Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. (No 3) [2021] FCAFC 112

Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. (No 3) [2021] FCAFC 112

The appropriate orders were to recognise the ICSID award as binding on the Kingdom of Spain and enter judgment for the pecuniary obligations under the award, while expressly preserving any immunity from execution. This form of order best gave effect to s 35(4) of the International Arbitration Act 1974 (Cth) and Art 54(1) of the ICSID Convention by giving the award the enforceable status of a domestic judgment without authorising execution contrary to immunity law. The respondents were entitled to costs, and the European Commission was required to pay the respondents' costs referable to its unsuccessful intervention because its application increased the private parties' costs on an issue...

Jurisdiction
Australia
Judgment Date
25 June 2021
Procedural Posture
Appeal Concerning Recognition and Enforcement of an ICSID Arbitral Award Under S 35(4) of the International Arbitration Act 1974 (cth) and Art 54 of the ICSID Convention / Full Court Determination of the Proper Form of Orders and Costs Following Reasons Delivered on 1 February 2021
Outcome
Orders of the Court at first instance were replaced with orders recognising the ICSID award as binding, entering judgment for the pecuniary obligations under the award, preserving immunity from execution, and awarding costs to the respondents, including intervention-related costs against the European Commission.
Legal Topics
['recognition of ICSID Awards' 'enforcement of Pecuniary Obligations Under Arbitral Awards' 'foreign State Immunity From Execution' 'form of Federal Court Orders' 'costs of Intervention']
['international Arbitration' 'public International Law' 'practice and Procedure' 'costs'] ['recognition of ICSID Awards' 'enforcement of Pecuniary Obligations Under Arbitral Awards' 'foreign State Immunity From Execution' 'form of Federal Court Orders' 'costs of Intervention']

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Procedural Posture

Appeal Concerning Recognition and Enforcement of an ICSID Arbitral Award Under S 35(4) of the International Arbitration Act 1974 (cth) and Art 54 of the ICSID Convention / Full Court Determination of the Proper Form of Orders and Costs Following Reasons Delivered on 1 February 2021

Legal Issues

  1. 1 ['Whether the respondents were entitled to orders under s 35(4) of the International Arbitration Act 1974 (Cth) and Art 54 of the ICSID Convention recognising the award as binding and giving it the status of a judgment of the Court.' 'Whether the orders should distinguish recognition and enforcement from execution so as not to derogate from any law relating to immunity from execution.' 'Whether the European Commission, as an unsuccessful intervener, should pay costs referable to its application to intervene.']

Ratio Decidendi

The appropriate orders were to recognise the ICSID award as binding on the Kingdom of Spain and enter judgment for the pecuniary obligations under the award, while expressly preserving any immunity from execution. This form of order best gave effect to s 35(4) of the International Arbitration Act 1974 (Cth) and Art 54(1) of the ICSID Convention by giving the award the enforceable status of a domestic judgment without authorising execution contrary to immunity law. The respondents were entitled to costs, and the European Commission was required to pay the respondents' costs referable to its unsuccessful intervention because its application increased the private parties' costs on an issue...

Court Disposition

Orders of the Court at first instance were replaced with orders recognising the ICSID award as binding, entering judgment for the pecuniary obligations under the award, preserving immunity from execution, and awarding costs to the respondents, including intervention-related costs against the European Commission.

Orders

  • ['In lieu of the orders made by the Court at first instance on 24 February 2020 in NSD 602 of 2019, the Court recognises as binding on the respondent, the Kingdom of Spain, the ICSID award dated 15 June 2018 as rectified by the decision on rectification dated 29 January 2019 in Antin Infrastructure Services...