Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l

The High Court of Australia considered an appeal by the Kingdom of Spain concerning the recognition and enforcement of an arbitral award. The dispute arose when Infrastructure Services Luxembourg S.à.r.l. sought to enforce an award obtained under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) in Australia, pursuant to section 35(4) of the *International Arbitration Act 1974* (Cth). Spain asserted foreign state immunity from the jurisdiction of Australian courts under section 9 of the *Foreign States Immunities Act 1985* (Cth).

The central legal issues before the High Court were whether Spain had waived its foreign state immunity from jurisdiction by submitting to the jurisdiction through its agreement to the ICSID Convention, and specifically, whether its agreement to Articles 53, 54, and 55 of the ICSID Convention constituted such a waiver. The Court was also required to consider the distinct meanings of "recognition," "enforcement," and "execution" within these articles and whether any inconsistency existed between the English, French, and Spanish texts of the Convention.

The High Court reasoned that Spain's entry into the ICSID Convention, which includes its agreement to the consequences of an award rendered under its framework, constituted a waiver of immunity from jurisdiction for the purposes of the *Foreign States Immunities Act*. The Court found that section 10(2) of the Act, which permits waiver of immunity explicitly or by implication, was satisfied by Spain's treaty obligations. This approach aligns with international practice where waivers are construed narrowly but are effective when unmistakable, as the Court found to be the case here. The Court determined that the agreement to the ICSID Convention, and its provisions regarding the binding force and enforcement of awards, was sufficient to establish a waiver of immunity from jurisdiction in Australian courts.

The appeal was dismissed with costs.