Recent Cases

Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l [2023] HCA 11 (12 April 2023) (Kiefel CJ; Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ)


Catchwords:


Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for recognition and enforcement of arbitral award – Where respondents obtained arbitral award under Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“ICSID Convention”) – Where respondents sought to enforce award in Australia under s 35(4) of International Arbitration Act 1974 (Cth) – Where s 9 of Foreign States Immunities Act 1985 (Cth) (“Act”) provides that a foreign State is immune from jurisdiction of Australian courts – Where appellant asserted foreign State immunity from jurisdiction – Whether appellant waived foreign State immunity from jurisdiction under s 10 of Act by submitting to jurisdiction by agreement – Whether entry into ICSID Convention and agreement to Arts 53, 54 and 55 constituted waiver of immunity from jurisdiction – Whether “recognition”, “enforcement” and “execution” in Arts 53, 54 and 55 of ICSID Convention have separate and different meanings – Whether inconsistency arises between English, French and Spanish texts of ICSID Convention.

Words and phrases – “arbitral award”, “enforcement”, “execution”, “exequatur”, “explicature”, “express”, “foreign State immunity”, “immunity from jurisdiction”, “implicature”, “implied”, “inference”, “international law principles”, “recognition”, “treaty interpretation”, “waiver of immunity”.