CL-2021-000481 - [2025] EWHC 2874 (Comm)

The factual background is not seriously in dispute. Between July 2008 and July 2009, the Claimants invested in a number of solar energy plants in Spain allegedly in reliance upon representations made on behalf of Spain as to minimum tariffs and incentives which would be extended to renewable energy projects in Spain. It is alleged that between November 2010 and June 2014, Spain passed legislation revoking those tariffs and incentives, which the claimants alleged breached the terms of the Energy Charter Treaty 1994 (“ECT”) and caused the claimants substantial losses.

On 31 July 2015, the Claimants commenced arbitration against Spain seeking damages pursuant to Article 26 of the ECT. The arbitration was conducted under the rules applicable to ICSID Convention arbitrations. It is not in dispute for present purposes at least that the arbitration, the making of the award and its enforcement are all governed by the provisions of the ICSID Convention. On 6 September 2019, the Tribunal published the Award in which it found proved the breaches alleged by the claimants and ultimately awarded the claimants €29.3m.

On 9 August 2021, the Claimants applied without notice under s.1(2) of the Arbitration (International Investment Disputes) Act 1966 (the “1966 Act”) for an order registering the Award in England & Wales. On 14 September 2021, Cockerill J (as she then was) made the order sought. By operation of s.2(1) of the 1966 Act, the effect of registration was that the Award had the same force and effect for the purposes of execution as if it was a judgment of the High Court.

Following service, which delayed matters somewhat, on 6 January 2023, Spain applied to set aside Cockerill J’s Order on grounds that included that Spain was immune from the English Court’s jurisdiction under s.1(1) of the State Immunity Act 1978. As noted already, on 31 January 2024, the Claimants purported to assign to Blasket “all of the rights, interests and benefits … under or in respect of the Award…”.

By an order made on 13 February 2024 Fraser LJ (sitting as a Judge of the Commercial Court) dismissed the set aside application save for the ground based on the State Immunity Act 1978. That issue has been resolved against the position adopted by Spain by the Court of Appeal in Infrastructure Services Luxembourg Sarl v. the Kingdom of Spain [2024] EWCA Civ 1257; [2025] 2 WLR 621 (“ISL”). That being so, Fraser LJ adjourned final determination of the set aside application until after the Court of Appeal had handed down its judgment in ISL. Spain applied for and obtained permission to appeal to the Supreme Court and that appeal is due to be heard at the end of this year. By consent it has been directed that the set aside application be further adjourned until after hand down of the Supreme Court’s judgment. In making that order Henshaw J directed that this application should be heard separately because “… it ought to be resolved promptly in order to provide clarity as to who the parties are.” It is common ground that the parties are bound by the decision of the Court of Appeal in ISL unless and until that decision is reversed by the Supreme Court.