Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11

Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. [2023] HCA 11
High Court of Australia
Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson, & Jagot JJ
Foreign state immunity – the respondents commenced arbitration against the Kingdom of Spain under the Energy Charter Treaty (1994) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (ICSID Convention) to which Spain was a party – the ICSID Convention provides for an arbitral tribunal to hear and determine disputes between states and nationals of other states – the respondents obtained an arbitral award of ??101 million – they brought proceedings in the Federal Court of Australia to enforce that award under s354 of the International Arbitration Act 1974 (Cth) and sought orders that Spain pay them of ??101 million – the Foreign States Immunities Act 1985 (Cth) provides that a foreign state is immune from the jurisdiction of Australian courts except as provided by that Act – an exception under that Act occurs where the foreign state has submitted to jurisdiction – the judge at first instance held Spain’s agreement to the ICSID Convention constituted a waiver of immunity from recognition and enforcement, but not from execution, of the award, and ordered Spain pay the applicants ??101 million – the Full Court of the Federal Court held Spain had waived immunity from recognition, but not from execution, and perhaps also not from enforcement, of the award – the Full Court concluded the orders of the first instance judge went too far by requiring Spain to do something – Full Court made orders recognising the award as binding on Spain, as well as entering judgment against Spain for ??101 million, but the orders provided that they should not be construed as derogating from Spain’s immunity from execution – Spain appealed to the High Court – held: section 10(2) of the Foreign States Immunities Act provides that the general immunity of a foreign state from jurisdiction does not apply if the foreign state has waived its immunity either explicitly or by implication – words said to evidence waiver by implication must be construed narrowly – waiver is rarely accomplished by implication and only where waiver is unmistakable – the general principles of treaty interpretation are contained in the Vienna Convention on the Law of Treaties (1969), rather than domestic rules of statutory interpretation – Spain’s agreement to the ICSID Convention amounted to a waiver of foreign state immunity from the jurisdiction of Australian courts to recognise and enforce the arbitral award, but not from the jurisdiction regarding execution of the arbitral award – the orders of both the first instance judge and the Full Court of the Federal Court were properly characterised as orders for recognition and enforcement – the orders of the Full Court of the Federal Court should not be disturbed – appeal dismissed
Kingdom of Spain