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

Blasket’s primary submission is that the assignability argument is one that is not open to Spain because Spain is estopped from pursuing it following the hand down of Stewart J’s judgment in the FCA proceedings (“FCA judgment”). The awards in dispute in the FCA proceedings were awards published by arbitral tribunals appointed under the ICSID Convention which had been registered in Australia under its International Arbitration Act 1974 – broadly the Australian equivalent of the 1966 Act. Spain challenged registration in the FCA proceedings on the grounds that (i) it was immune from the court’s jurisdiction under Australia’s equivalent of section 1(1) of the State Immunity Act 1978; and (ii) the awards were not assignable.

Although Spain maintains in these proceedings that it is immune from the English Court’s jurisdiction under s.1(1) of the State Immunity Act 1978, it is not in dispute that this point is not available to Spain unless and until the Supreme Court overturns the decision of the Court of Appeal in ISL. This is so because the Court of Appeal decided that although the general immunity conferred by section 1(1) of the State Immunity Act 1978 in principle applied to the registration of ICSID Convention arbitration awards, each Convention state (including Spain) had agreed by Article 54 of the ICSID Convention that awards against them in arbitrations conducted in accordance with the ICSID Convention could be enforced in all other Convention states and thus enforcement of such awards came within the exception to the general immunity under s.1(1), which is set out in section 2 of the 1978 Act.

It is the determination in the FCA proceedings of the assignability issue that is said to give rise to the issue estoppel. Spain challenges this approach essentially on the basis that some or all of the technical requirements that apply before an issue estoppel can arise from a foreign judgment are not satisfied.

It is common ground that the principles that apply to an issue estoppel based on a foreign judgment are those set out by Males LJ in Hulley Enterprises Ltd v Russian Federation [2025] EWCA Civ 108; [2025] 3 WLR 252 (”Hulley”). In his summary of the applicable principles, Males LJ (a) followed the summary of the applicable principles set out by Clarke LJ in Good Challenger Navegante SA v Metalexportimport SA [2004] 1 Lloyds Rep 67 (“Good Challenger”) at [50]; and (b) approved the later summary of the applicable principles set out in the Judgment of the Privy Council in Linhas v MatlinPatterson [2022] UKPC 21; [2023] Bus LR 1305 at [36]. The applicable principles are those summarised by Males LJ at [74]-[75] in Hulley in these terms:

“74 The ordinary rule that for issue estoppel to arise as a result of a foreign judgment, the foreign judgment must be entitled to recognition here, was explained by the Privy Council in Gol Linhas v MatlinPatterson [2023] Bus LR 1305:

36.

In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 the House of Lords held that issue estoppel can be based on a foreign judgment. To give rise to such an issue estoppel, three requirements must be satisfied: see DSV Silo-und Verwaltungsgesellschaft mbH v Owners of The Sennar (The Sennar) (No 2) [1985] 1WLR 490, 499 (Lord Brandon of Oakbrook); Good Challenger Navegante SA v Metalexportimport SA [2004] 1 Lloyds Rep 67, at para 50. First, the judgment must be entitled to recognition in accordance with the domestic rules on the recognition of foreign judgments. At common law, these rules require the judgment to be (a) given by a court of a foreign country with jurisdiction to give it and (b) final and conclusive on the merits. Second, the parties in the two actions must be the same. Third, the issue decided by the foreign court must be the same as the issue in the domestic proceedings.”

75 Section 31 (Footnote: ¹) sets out the additional requirements for recognition and enforcement of a foreign court judgment against a state, which must therefore be satisfied if it is sought to invoke such a judgment as giving rise to an issue estoppel against that state.”

Males LJ also approved the additional principles identified by Clarke LJ in Good Challenger at [54] of which two are relevant to this case being (i) it is irrelevant that the English court may form the view that the decision of the foreign court was wrong either on the facts or as a matter of English law and (ii) the application of the principles of issue estoppel is subject to the overriding consideration that it must work justice and not injustice.

It is not in dispute that the parties in these proceedings and the FCA proceedings are the same. All other issues are in dispute.

Spain challenges the availability of issue estoppel firstly on the basis that before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in England and Wales and that is not currently the position in relation to the FCA proceedings because a final order is yet to be made and thus the judgment in the FCA proceedings is not final or binding.

I accept (indeed it is not seriously in dispute) that as a matter of Australian law, the judgment in the FCA proceedings will only become final and binding when a final order is issued and sealed because it is at that point that the FCA becomes functus and the decision binding subject only to an appeal – see Burrell v R[2008] HCA 34, (2008) 237 CLR 219 at [20]. Although there is no evidence of Australian law available, I do not consider any is required given the nature of the issue and the authority relied on – see Brownlie v. FS Cairo (Nile Plaza) LLC [2021] UKSC 45 per Lord Leggatt JSC at [148].

Mr Harris KC’s submission that this is mere legal technicality in one sense is correct but in another is immaterial because of the very clear and well-established principles that apply in this area. Unless and until a final order is made by the FCA, the judgment in the FCA proceedings is not “… final and conclusive on the merits…”. Mr Harris KC submitted that if I reached this conclusion, one of two solutions might be adopted – one was to delay handing down the judgment in these proceedings until after final judgment had been entered in the FCA proceedings or to qualify any order I make as taking effect only when the order is made and sealed in the FCA proceedings. In principle the point at which the rules applicable to an issue estoppel based on a foreign judgment are to be tested is no later than the date when judgment is given in the application or trial in which the issue arises. In my judgment therefore there are two possible approaches available – either simply to reject the claimants and Blasket’s submission that Spain is estopped from asserting that the Award is non-assignable or to adjourn this application until after the FCA has made a final order by reference to its judgment in the FCA proceedings. I return to this issue having considered Spain’s other submissions concerning estoppel because how to proceed only matters if the absence of an order is the only obstacle to an issue estoppel arising.

As Males LJ held in Hulley at [75], s.31 of the Civil Jurisdiction and Judgments Act 1982 sets out additional requirements for recognition and enforcement of a foreign court judgment against a state, which must be satisfied if it is sought to invoke such a judgment as giving rise to an issue estoppel against that state. Spain submits that those requirements are not satisfied in the circumstances of this case.

S.31(1) provides:

“31 Overseas judgments given against states, etc.

(1)

A judgement given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if –

(a)

it would be so recognised and enforced if it had not been given against a state; and

(b)

that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978.”

The requirements of s.31(1)(b) are plainly satisfied on the law as it is following the decision of the Court of Appeal in in ISL. Spain’s submission was that it would be potentially unfair to resolve this issue in these proceedings given the impending appeal to the Supreme Court in ISL because such a resolution may give rise to an issue estoppel as between the parties. In the circumstances as they now are that is fanciful. Firstly, the parties have always proceeded on the basis that this issue will be finally determined in this case on the application to set aside, which is to be listed following hand down by the Supreme Court of its judgments on the appeal. Thus neither party intended any conclusion on this application to be determinative of that point. In any event that has been put beyond doubt by the undertakings that Mr Harris KC offered and which I accepted in the course of the adjournment application – see paragraph 4(c) of the Judgment on the adjournment application. As the law now is, unless I adjourn this application, I am bound to conclude that s.31(1)(b) of the Civil Jurisdiction and Judgments Act 1982 is satisfied. An adjournment is not appropriate given the undertaking I have accepted. In those circumstances, I conclude that s.31(1)(b) is satisfied.

The position in relation to s.31(1)(a) is more problematic. It was submitted on behalf of Spain and I accept that a judgment of a foreign court entered in personam against a defendant other than a state is not capable of being enforced in England and Wales unless “… the judgment debtors were present … in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction.” – see Rubin and another v Eurofinance SA and others [2012] UKSC 46; [2013] 1 AC 236 per Lord Collins of Mapesbury at [7] and [10].

By s.33 of the Civil Jurisdiction and Judgments Act 1982, “(f)or the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales … the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings … to contest the jurisdiction of the court…” Spain contends that it appeared in the FCA proceedings solely to contest the jurisdiction of the court. The claimants and Blasket dispute this.

The parties invite me to reach conclusions on this issue from what appears in the judgment of Stewart J in the FCA proceedings. This is unsatisfactory. Absent agreement, the issue ought to be the subject of evidence. I am not critical of Spain for the absence of evidence from it on this point because as was submitted on behalf of Spain:

“70

This [issue estoppel] argument was not flagged in Blasket’s witness evidence. It was not raised with Spain when Blasket Renewable [2025] FCA 1028 was handed down on 29 August 2025, two months before the Hearing. It was not raised in subsequent correspondence concerning the arrangement of this Hearing. Rather, it was raised for the first time in Blasket’s Skeleton, filed at 4pm on 22 October 2025 (i.e. the day before the present Skeleton Argument was filed).”

This is not a satisfactory way to conduct litigation of this sort. It necessarily means that I will have to resolve any doubts I might have on this issue against the claimants and Blasket because the onus rests on them to establish the issue estoppel on which they rely on the balance of probabilities.

Turning to Stewart J’s judgment, at paragraph 1 he records that the “… respondent to each application is the Kingdom of Spain, a sovereign State, which conditionally appears to assert foreign State immunity.” At paragraph 35 Stewart J records that (as here) there had been an application to substitute Blasket as claimant following a purported assignment of rights under various ICSID Convention awards against Spain and at paragraph 36 the Judge states that Blasket had been joined “on the basis that the making of those orders would not prevent Spain from disputing the validity or efficacy of the purported assignment at trial, which it now does.” In relation to an issue as to whether the immunity arguments should be argued separately from and ahead of the other issues that arose, Blasket had submitted that the issues should be argued separately because “… a party claiming immunity … loses its immunity…” by arguing issues other than those concerning immunity. In the result all issues were argued together because as Stewart J records “…because Spain’s contentions as to power, including its constitutional argument, are all directed to the maintenance of its immunity, it would not be irregular for the immunity and substantive points to be run together and that in adopting that approach Spain would not be regarded as having waived immunity…”

On the basis of this material. I conclude that Spain appeared and was understood by all parties to be appearing in the FCA proceedings for the sole purpose of contesting the jurisdiction of the Australian courts. That being so, I conclude that by appearing in the FCA proceedings for that purpose Spain was not submitting to the jurisdiction of the Australian courts. In those circumstances, Spain did not submit to the jurisdiction of the FCA and that prevents the judgment in those proceedings being recognised or enforced in England applying s.33 of the Civil Jurisdiction and Judgments Act 1982 and in consequence s.31(1)(a) of the Civil Jurisdiction and Judgments Act 1982 is not satisfied and the claimants and Blasket are not entitled to assert an issue estoppel by reference to the judgment in the FCA proceedings irrespective of the point concerning the making of a final order considered earlier.

Finally, Spain argues that issue estoppel is not available in relation to a pure point of law. Although not material given the conclusions I have so far reached, I set out my conclusions on this issue in the interest of completeness. I am not able to accept Spain’s submission on this point for the following reasons.

In Skatteforvaltningen v MCML Ltd [2025] EWCA Civ 371; [2025] 4 WLR 52 (“Skatt”), the majority (Newey and Popplewell LJJ) held that determinations of either law or fact in earlier proceedings could give rise to an issue estoppel by reference to well established earlier authority. Popplewell LJ concurred with Newey LJ at [124]. As Newey LJ stated at [127] “In Hoystead (Footnote: ²), Lord Shaw, giving the judgment of the Privy Council, said at p 170 that the principle extended to any point which was “in substance the ratio of and fundamental to the decision””. Newey LJ relied on the decision of Dixon J in the High Court of Australia in Blair v Curran (1939) 62 CLR 464, where the emphasis was not on whether the point was one of law or fact (or one of pure law, which is what Spain asserts in this case is incapable of giving rise to an estoppel) but on whether the point was fundamental to resolution of the case by the judgment said to give rise to the estoppel. As Dixon J put it (see Newey LJ’s judgment at [129]) “… ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation…”

In my judgment the applicable principles are those set out in Skatt by Newey LJ at [134]:

“It is, I think, clear from the authorities that issue estoppels can arise from determinations on points of law as well as points of fact. Thus, Spencer Bower states in paragraph 8.04, “The determinations which will found an issue estoppel may be of law, fact, or mixed fact and law”. In Jones v Lewis [1919] 1 KB 328, Bankes LJ said at pp 344–345, “No question of fact which was directly in issue between the parties to the action before Bray J, and which was decided by him, could be further litigated by either party, and the same would apply to the exact point decided by Bray J, whether it were a point of law or of mixed law and fact”. In Hoystead, Lord Shaw commented at p 165 that “[p]arties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case” and, at p 168, that “whether the point as to joint ownership depended upon admission of fact upon evidence led or upon argument upon construction of a statute, that is … nothing to the point in considering the question of estoppel”. In Blair v Curran (Footnote: ³), Dixon J observed at p 531 that “[a] judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”… In Watt v Ahsan (Footnote: ⁴), Lord Hoffmann said in para 31 that issue estoppel arises “when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties”. (Emphasis added in each instance.) In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 916F–917B (“Carl Zeiss”), Lord Reid indicated that there was no justification for a distinction between issues of fact and issues of law.”

It was submitted by Spain that the majority in Skatt left open the possibility that the principles so far considered may not arise in relation to pure points of law. I reject this as at best fanciful. First it is inconsistent with all the analysis by Newey LJ down to and including [134]. Secondly the precise parameters of the pure law exception contended for are unclear beyond it involving a foreign rule of law other than one that “… relates … to a factual situation…”. It is difficult to see how a point of law that is determinative of a claim or application would not satisfy this test. An inability to define clearly where the boundary between pure points of law and other points of law falls makes it improbable that such an analysis could or should be adopted, particularly when the approach identified above of testing whether the point of law said to give rise to an estoppel by asking whether it was “in substance the ratio of and fundamental to the decision” is a test that is relatively straight forward to apply in most cases. Thirdly, contrary to Spain’s submission, I do not read what Newey LJ said at [135] as him acknowledging the possibility of such a conclusion. Rather he adopts the point (made originally by Nugee LJ in his dissent on this point) that the case relied on in the text book Nugee LJ had relied on appeared to turn on a different point (so that the statement in the text book was unsupported by authority) before concluding that if there was any such principle it was of no application in the case he was deciding. In context that was not a recognition that the point is at all plausible. I was told that permission has been given to appeal Skatt to the Supreme Court. However, I was not told whether the “pure point of law” point was relevant to that appeal.

As things stand I conclude that the better view is that an estoppel on a point of law is capable of arising from a judgment of a foreign court of competent jurisdiction providing that that the point of law is part of the “… ratio of and fundamental to the decision…” of the foreign court. It follows that I reject Spain’s challenge to the claimants and Blasket’s reliance on issue estoppel on the basis that issue estoppel is not available by reference to points of law and I reject the notion that estoppel is not available in relation to pure points of law if otherwise the point concerned is part of the “… ratio of and fundamental to the decision…” of the foreign court.

In the result, I conclude that the claimants and Blasket have failed to establish that Spain is estopped from advancing its substantive arguments on the assignability issue because (a) there is as yet no final order in the FCA proceedings capable of triggering the right to assert an issue estoppel and, more fundamentally, (b) by appearing in the FCA proceedings for the purpose of asserting what it claimed to be its entitlement to state immunity, Spain was not submitting to the jurisdiction of the Australian courts with the result that the judgment in the FCA proceedings is not capable (or capable as yet) of being enforced in England and Wales.

Had I concluded that the only reason why issue estoppel was not available was that referred to in (a) above, I would have directed that this application be adjourned and re-listed for short supplemental submissions following the sealing of the order in the FCA proceedings with judgment on this application to follow as soon as possible thereafter. However, in the circumstances, that does not arise.