Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157

FEDERAL COURT OF AUSTRALIA

Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157 File numbers: NSD 601 of 2019 NSD 602 of 2019

Judge: STEWART J

Date of judgment: 24 February 2020

Catchwords: ARBITRATION – international arbitration – applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) PRIVATE INTERNATIONAL LAW – foreign state immunity – where foreign state respondent asserts sovereign immunity – interaction between s 9 of the Foreign States Immunities Act 1985 (Cth) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Investment Convention) which is given the force of law by s 32 of the Arbitration Act – where s 9 of the Immunities Act provides that a foreign state is immune from the jurisdiction of the courts of Australia in a proceeding – where Art 54 of the Investment Convention provides that each Contracting State shall recognise an award rendered pursuant to the Investment Convention as binding and enforce the pecuniary obligations imposed by that award as if it were a final judgment of a court of that state – whether the apparent inconsistency between Art 54 of the Investment Convention and s 9 of the Immunities Act can be resolved – whether submission to jurisdiction under s 10 of the Immunities Act PRIVATE INTERNATIONAL LAW – foreign state immunity – interpretation of the Investment Convention – whether the Investment Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award – distinction between recognition and enforcement of award as if it were a final judgment of a court under Art 54(1) and execution of an award in Art 54(3) of the Investment Convention – where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in relation to immunity from execution STATUTORY INTERPRETATION – public international law – Vienna Convention on the Law of Treaties – construction of the Investment Convention – reconciling the English, French and Spanish authentic texts