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

FEDERAL COURT OF AUSTRALIA

Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. (No 3) [2021] FCAFC 112 Appeal from: Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157

File number: NSD 329 of 2020

Judgment of: ALLSOP CJ, PERRAM AND MOSHINSKY JJ

Date of judgment: 25 June 2021

Catchwords: ARBITRATION – international arbitration – application for recognition of award of the International Centre for Settlement of Investment Disputes under s 35(4) of the International Arbitration Act 1974 (Cth) ('Arbitration Act') PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ('ICSID Convention') and the Arbitration Act – whether parties entitled to an order made pursuant to s 35 of the Arbitration Act and Art 54 of the ICSID Convention in the nature of an exequatur – parties so entitled PRACTICE AND PROCEDURE – orders – appropriate form of orders to preserve the distinction between recognition and execution of arbitral awards – appropriate form of orders so as to avoid derogation from the law in force in relation to immunity from execution – award to be recognised as if it were a judgment of the Court COSTS – intervention – whether unsuccessful intervener liable for costs – intervention resulted in the increase in costs to a degree – intervener liable for costs referable to the application to intervene

Legislation: Acts Interpretation Act 1901 (Cth) s 13 Federal Court of Australia Act 1976 (Cth) s 4 International Arbitration Act 1974 (Cth) ss 31, 35 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) Arts 53, 54, 55 Energy Charter Treaty, opened for signature 17 December 1994, 2080 UNTS 95 (entered into force 16 April 1998)