The Federal Court of Australia has recognised and enforced two awards issued in investor-state arbitrations conducted under the rules of the International Centre for Settlement of Investment Disputes (ICSID) (ICSID case numbers ARB/13/31 and ARB/13/36). The Federal Court decision, Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157 (Eiser), directly considers whether foreign states are immune from enforcement of an ICSID award in Australia.

This is the second decision involving the enforcement of an ICSID award against a foreign state in Australia (the first being Lahoud v The Democratic Republic of Congo [2017] FCA 982 (Lahoud)). The decision in Eiser is consistent with Lahoud.

The decision, that such an award could be enforced against Spain, shows that Australia is a reliable jurisdiction in which to seek the enforcement of awards against states. States cannot rely upon sovereign immunity protection to avoid the enforcement of ICSID awards. It also means that investors that have successfully obtained an arbitral award against a state should consider the possibility of enforcing that judgment against that state in Australia if its assets are located there.

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Leon Chung
Leon Chung
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