Summary

INTRODUCTION

1 Before the Court are four applications to enforce foreign arbitral awards under s 35(4) of the International Arbitration Act 1974 (Cth) (IAA). Each of the applications is brought by former investors in renewable energy projects in Spain or their assignees. The respondent to each application is the Kingdom of Spain, a sovereign State, which conditionally appears to assert foreign State immunity.

2 The arbitral awards were rendered by arbitral tribunals constituted by the International Centre for Settlement of Investment Disputes (ICSID) under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (ICSID Convention). Together, the awards amount to approximately €500 million, or AU$900 million.

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CONCLUSION

365 In the result, I find that Spain waived its foreign State immunity in all the proceedings for enforcement of the awards under s 10 Immunities Act. Also, Spain’s defences on the merits in all the proceedings fail. There should be judgments in favour of the applicants on each of the awards. As I understand the position (ie without deciding), assuming that no recoveries have otherwise been made, that means that the capital judgments in each proceeding will be:

(1) The RREEF proceedings: €59.6 million

(2) The 9REN proceeding: €41.76 million

(3) The Watkins proceeding: €77 million

(4) The NextEra proceeding: €290.6 million

366 To those amounts there will need to be added pre-judgment interest and costs of the arbitral proceedings where those were ordered.

367 As the applicants have been successful in these proceedings, they should have their costs.

368 I will allow the parties to bring in agreed or competing orders to give effect to these reasons and to deal with any outstanding matters of quantification, interest and costs. If necessary, I will also allow for further submissions to be made on those issues. In the meanwhile, the proceedings should all be listed for case management on a mutually convenient date within a few weeks from the publication of these reasons.

I certify that the preceding three hundred and sixty-eight (368) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.