Infrastructure Services Luxembourg v Kingdom of Spain - 2023 EWHC 1226 Comm - 24 May 2023
160. Spain argued in its skeleton argument regarding ICSID arbitrations that "the approach of these tribunals (and [the claimants]) in second guessing the sovereign prerogative of the treaty parties circumvents the essentially consent-based character of international jurisdiction, and forces those treaty parties to have recourse to the bluntest tool available - treaty termination - to regain control. From the point of view of an orthodox international lawyer, this is bizarre." I understand this submission to mean that Spain considers that it ought not to have to terminate (or withdraw from) earlier treaties in order to "regain control", by which I take it to mean, not to have to submit to arbitration under the ICSID Convention. But this submission is, with respect, to misunderstand the effect of treaty obligations in international law. Any state that becomes a party to any treaty, by definition, becomes subject to the obligations contained in that treaty. That is what acceding to a treaty accomplishes. Those treaty obligations subsist, in broad terms, for as long as that state is a party to the treaty in question. If it wishes to "regain control"
over the matters that are the subject of the treaty obligations, then it may do so (depending upon the terms of the treaty) by making reservations (if the treaty permits this) or terminating, or withdrawing from it. This is not the "bluntest tool" as Spain describes it; but even if it were, it is preferable to a particular state insisting that its own international treaty obligations be interpreted differently for itself, rather than for the other treaty nations, or for those who have rights under the ICSID Convention.
161. The law of England and Wales, as set out in the 1966 Act, clearly requires the High Court to recognise the Award, which was the result of the valid ICSID arbitration process between the claimants and Spain concerning their dispute under the ECT. It was this valid procedure which led to the Award, which is a valid and authentic one.
Recognition was achieved by the making of the Order, which was done ex parte as required by the Civil Procedure Rules. Spain was not heard on that application, and this too is as required by the rules, although Spain was entitled to apply to set that Order aside.
162. However, there are no proper grounds for setting aside the Order or refusing to recognise the Award, and on all the different arguments raised by Spain on its application - those based on lack of jurisdiction or immunity, no arbitration agreement, an invalid award and so on - and also non-disclosure to the judge who made the Award, Spain has failed. I would add only this. I have produced this judgment in order to explain the analysis that I consider both underpins the domestic enforcement regime for ICSID awards under the 1966 Act, and to address Spain's carefully advanced and argued multiple grounds of opposition to the Order. This should not be taken as encouragement by any state in a similar position to Spain that there is a lengthy and costly legal argument, based on wide-ranging arguments under international law, to be had on all or any attempts to obtain recognition of an ICSID award by an investor under the 1966 Act. There is not.
163. I explained at  above that the High Court will apply the law as it is set down in primary legislation together with judicial precedent applied by the doctrine of stare decisis. To do so in this case would lead to a very short judgment, and that is what parties must expect on applications of this type, on these types of jurisdictional grounds, in the future. The entire purpose of the ICSID Convention and the 1966 Act would be undermined if lengthy and complex arguments of the type advanced by Spain in this case were routinely advanced. Given the relative lack of authority on enforcement of ICSID awards under the 1966 Act, I hope that I might be forgiven for producing a judgment of this length on an application to which there is such a short answer available. In cases such as this one in the future, if the ICSID Committee have considered and dismissed objections under the Convention procedure and the award is a valid and authentic one, I wish to make it clear that there are no grounds for repetition or rehearing of those in the Commercial Court. Unless a case is truly exceptional, it is difficult to foresee how a hearing of the length required in this case, and a judgment of this length, would occur again. To do so would be contrary to the ICSID Convention and the 1966 Act, and is exactly what international arbitration is designed to avoid.
164. It therefore follows that this application by Spain to set-aside the Order fails.