Infrastructure Services Luxembourg S.A.R.L v Kingdom of Spain

The case of Infrastructure Services Luxembourg S.A.R.L v Kingdom of Spain involved an application for a stay of proceedings in the Federal Court of Australia for the recognition and enforcement of an award made by the International Centre for Settlement of Investment Disputes (ICSID). The applicant, Infrastructure Services Luxembourg S.A.R.L, sought to enforce an ICSID award against the Kingdom of Spain, which had invoked its immunity under the Foreign States Immunities Act 1985 (Cth). The dispute also involved a stay of enforcement due to an application by Spain for annulment of the ICSID award.

The legal issues before the court were whether the stay of enforcement of the ICSID award could be lifted despite the automatic provisional stay under the ICSID Convention, and whether the court had jurisdiction to hear the stay application given Spain's assertion of immunity. The court had to determine whether the automatic stay imposed by the ICSID Convention on enforcement of an award during the annulment process applied to the enforcement proceedings in the Federal Court, and if section 9 of the Immunities Act deprived the court of jurisdiction to determine the stay application.

In its reasoning, the court held that the automatic provisional stay of enforcement under the ICSID Convention did not affect the determination of the immunity issue in the Federal Court. The court found that the immunity provisions in the Immunities Act did not deprive the Federal Court of jurisdiction to hear the stay application. Consequently, the court granted the stay application, effectively halting the enforcement proceedings until the annulment application before the ICSID was resolved.

The court's final orders were that the proceeding be stayed until further order, with the matter to be listed for case management on 29 October 2019, and that costs be reserved. This decision ensures that the enforcement of the ICSID award is paused pending the resolution of the annulment application, while also addressing the jurisdictional issue posed by Spain's immunity claim.