Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. (High Court of Australia [2023] HCA 11)

Procedural record

1. 15 June 2018Arbitration

   15 June 2018Arbitration

   ICSID arbitral award

   Decision summary

   The arbitral tribunal awarded the respondents €101 million.

   Participants

   Kingdom of Spain

   Infrastructure Services Luxembourg S.a.r.l.

   1 year, 8 months and 9 days later · 619 days

2. 24 February 2020Australia

   24 February 2020Australia

   Judgment of the Federal Court of Australia in Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157

   Federal Court of Australia

   Case no.

   [2020] FCA 157

   Decision summary

   The primary judge held that Spain had waived immunity from recognition and enforcement of the ICSID award, but not from execution, and ordered Spain to pay the applicants €101 million.

   Participants

   Eiser Infrastructure Ltd

   Kingdom of Spain

   Federal Court of Australia

   Judge

   Stewart J

   11 months and 8 days later · 343 days

3. 1 February 2021Australia

   1 February 2021Australia

   Judgment of the Full Court of the Federal Court of Australia in Kingdom of Spain v Infrastructure Services Luxembourg Sarl (2021) 284 FCR 319

   Full Court of the Federal Court of Australia

   Case no.

   [2021] FCAFC 112

   Citation

   (2021) 284 FCR 319

   Decision summary

   The Full Court held that Spain had waived immunity from a proceeding for recognition, while immunity from execution, and perhaps also enforcement, had not been waived. It replaced the primary orders with orders recognising the award as binding and entering judgment for €101 million while preserving the effect of law on Spain's immunity from execution.

   Participants

   Kingdom of Spain

   Infrastructure Services Luxembourg S.a.r.l.

   Full Court of the Federal Court of Australia

   Judge

   Allsop CJ

   Judge

   Perram J

   Judge

   Moshinsky J

   2 years, 2 months and 11 days later · 800 days

4. 12 April 2023Australia

   12 April 2023Australia

   Decision of the High Court of Australia in the case S43/2022 dated 12 April 2023

   High Court of Australia

   Case no.

   S43/2022

   Citation

   [2023] HCA 11

   Decision summary

   The High Court dismissed Spain's appeal with costs. It held that Spain's agreement to articles 53 to 55 of the ICSID Convention waived foreign State immunity from Australian jurisdiction to recognise and enforce, but not to execute, the award, and upheld the Full Court's recognition and enforcement orders.

   Participants

   Kingdom of Spain

   Representative

   C S Ward SC (For: Kingdom of Spain)

   Representative

   P F Santucci (For: Kingdom of Spain)

   Representative

   K&L Gates (For: Kingdom of Spain)

   Infrastructure Services Luxembourg S.a.r.l.

   Representative

   B W Walker SC (For: Infrastructure Services Luxembourg S.a.r.l.)

   Representative

   J A Hogan-Doran SC (For: Infrastructure Services Luxembourg S.a.r.l.)

   Representative

   C W Brown (For: Infrastructure Services Luxembourg S.a.r.l.)

   Representative

   Norton Rose Fulbright (For: Infrastructure Services Luxembourg S.a.r.l.)

   High Court of Australia

   Judge

   Kiefel CJ

   Judge

   Gageler J

   Judge

   Gordon J

   Judge

   Edelman J

   Judge

   Steward J

   Judge

   Gleeson J

   Judge

   Jagot J

   Authorities cited

   4

   • Foreign States Immunities Act 1985 (Cth)
     statute
   • International Arbitration Act 1974 (Cth)
     statute
   • Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)
     treaty
   • Energy Charter Treaty (1994)
     treaty