I have read the reasons for judgment to be published of Perram J. I agree with the orders that his Honour proposes. Subject to the following largely by way of elaboration, I agree with his Honour's reasons. The orders to which the applicant was entitled were those that properly reflected the outcome of a recognition proceeding and that did not involve any form of execution contemplated by Arts 54(3) and 55 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and Part IV of the Foreign States Immunities Act 1985 (Cth). I agree that the parties should be heard on the proper form of the order to be made to achieve that outcome.
As the reasons of the learned primary judge and of Perram J make clear the principal difficulty at the centre of the debate is linguistic or semantic. That is not to minimise the importance of the question: far from it. The ICSID Convention is not only an important international convention underpinning and supporting the flow of investment capital around the world, but it is also a law of the Parliament by force of s 32 of the International Arbitration Act 1974 (Cth). The confusion and difficulty capable of being generated by attempts to agree upon legal procedure amongst different nations with different legal systems was evident in the negotiation and creation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting (the New York Convention) only a handful of years before the ICSID Convention. That negotiation was well known to the negotiators and drafters of the ICSID Convention. The distinguished commentator and practitioner Albert Jan van den Berg has remarked that various of the proposals for the enforcement procedure for article III of the New York Convention created "a Babel-like confusion at the Conference": van den Berg, The New York Arbitration Convention of 1958 (Kluwer 1981) at 235. Justice Perram refers to the "interpretive carnage" of the discussion dealt with deftly by Professor Schreuer as referred to in Perram J's reasons at .
Recognition and enforcement of an arbitral award are distinct, but related concepts. The linguistic debate as to whether execution is synonymous with enforcement or is a concept within it need not, it seems to me, be debated or resolved as a question of fixed content, for all purposes. We are dealing here with Arts 54 and 55 of the ICSID Convention. As Professor Schreuer's authoritative work (The ICSID Convention: A Commentary (Cambridge University Press, Second Edition)) makes clear, the related aims of Arts 54 and 55 were clear.
Article 54 was intended to be available against both a State and an investor. The inclusion of enforcement in Article 54 was to give recourse against the defaulting investor: Schreuer op cit at p 1119 . Professor Schreuer says that it "was considered highly unlikely that the State party to the Convention would not carry out its treaty obligations … to comply with an award": ibid. Nevertheless, articles 54(1) and (2) and the drafts thereof refer and referred to recognition and enforcement against the parties in equal terms: ibid.
The preservation of State immunity from execution was taken for granted, though non-compliance by a State with an award was regarded as extremely unlikely: Schreuer op cit p 1152 . Article 55 left the matter to the place of attempted execution or enforcement in that sense.
The obligation to recognise an award under article 54 was unequivocal and unaffected by questions of immunity from execution. As the reasons of Perram J and as the discussion of Professor Schreuer (op cit pp 1128–1134) both show, sovereign immunity from execution (Arts 54(3) and 55) does not arise at the point of recognition.
I do not see that it can be other than a species of recognition and that it cannot be execution. The order (whether in terms of that made by the United States District Court in Liberian Eastern Timber Corporation (LETCO) v Liberia, United States District Court for the Southern District of New York (12 December 1986) 2 ICSID Reports 383 or by Foster J in Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2)  FCA 276; 201 FCR 535) is one which gives the required recognised status to the award in the domestic firmament: It is to be seen as (recognised as) equivalent to a domestic judgment and is to be enforceable as such. This is a procedure for making the award operative within the domestic legal system. In many countries this is referred to as exequatur. It enables steps thereafter to be taken to obtain satisfaction of the pecuniary obligations under the award whether by seizure or sale or sequestration of property, or appointment of a receiver to property, or otherwise. It is logically and practically anterior to such later steps which can only be characterised as execution. That (as a matter of language) an exequatur order, or an order that the award be enforceable as if it were a judgment of the court, or an order that judgment be entered in an amount of the award, could meaningfully be described in a particular context as an order being part of the process of enforcement (at its commencement, or as its point of commencement) does not mean that it is to be characterised as execution, or as a step or a procedure to which Arts 54(3) and 55 speak.
The relationship between recognition and enforcement can be seen by the wording of the ICSID Convention itself and the International Arbitration Act. Whether the French and Spanish languages have a penumbra or range of meaning in the words exécution and ejecutar to encompass a non-execution procedure of enforcement would be a matter of evidence. I am unconvinced that the question of resolution of the meaning of the English, French and Spanish texts can be done in ignorance of the content by way of evidence of two of the three languages. But it does not matter. The proceeding which this Court has before it, which is untouched by foreign State immunity from execution, is one to obtain an order equivalent to exequatur : a form of recognition of the status of the award as a judgment of the Court or as equivalent to a judgment of the Court so that it may be, henceforth, enforced by way of pecuniary obligations as if it were such a judgment, subject to the Kingdom of Spain's rights of immunity as to execution recognised by Arts 54(3) and 55, as part of the International Arbitration Act. In point of characterisation that is a proceeding to recognise the award in respect of which proceeding Spain has, by acceding to the ICSID Convention, submitted to the jurisdiction of the Court and waived immunity under s 10 of the Foreign States Immunities Act 1985 (Cth).
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.
REASONS FOR JUDGMENT
The Respondents obtained an award against the Appellant Kingdom under the provisions of an international treaty to which Spain and Australia are both Contracting States, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Opened for signature 18 March 1965. 575 UNTS 159 (entered into force 14 October 1966) ('the ICSID Convention'). The dispute between them related to the investment by the Respondents of EUR139,500,000 into solar power generation projects within the territorial confines of Spain. They had been encouraged to do so by a subsidy program put in place by Spain which was subsequently withdrawn. The Respondents alleged that the withdrawal of the subsidy program was a contravention of another treaty, The Energy Charter Treaty. Opened for signature 17 December 1994. 2080 UNTS 95 (entered into force 16 April 1998) ('the ECT'). Pursuant to Art 26(3)(a) of the ECT Spain agreed with the other Contracting States to that treaty that it gave its unconditional consent to the submission of the dispute to international arbitration and, by Art 26(4)(a) it agreed to an international arbitration under the auspices of the ICSID Convention.
(1) The applicants have leave under s 35(4) of the International Arbitration Act 1974 (Cth) to enforce the award of the International Centre for Settlement of Investment Disputes dated 15 June 2018 as rectified by the award dated 29 January 2019 in Case No. ARB/13/31 against the respondent;
(2) The respondent pay the applicants €101,000,000;
(3) The respondent pay the applicants interest on €101,000,000 from 20 June 2014 to 15 June 2018 at the rate of 2.07%, compounded monthly, and from 16 June 2018 to the date of payment at the rate of 2.50%, compounded monthly;
(4) The respondent pay the applicants US$635,431.70 and £2,447,008.61;
(5) The respondent pay the applicants' costs of the proceeding, save that if any party wishes to vary this order 5 it may apply to do so by filing an interlocutory application to that effect with written submissions of no more than three pages within 14 days of the making of these orders.
(1) In this Act, unless the contrary intention appears:
agreement means an agreement in writing and includes:
(a) a treaty or other international agreement in writing; and
(b) a contract or other agreement in writing.
proceeding means a proceeding in a court but does not include a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a prosecution.
9 General immunity from jurisdiction
Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.
10 Submission to jurisdiction
(1) A foreign State is not immune in a proceeding in which it has submitted to the jurisdiction in accordance with this section.
(2) A foreign State may submit to the jurisdiction at any time, whether by agreement or otherwise, but a foreign State shall not be taken to have so submitted by reason only that it is a party to an agreement the proper law of which is the law of Australia…
It is in the light of these provisions that the Respondents submitted below and submit again in this Court that the ICSID Convention is an agreement within the meaning of s 10(2). Two articles of the ICSID Convention are principally relevant, Art 54 and Art 55. They are (in the English version of the text) as follows:
(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.
Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.
The Respondents contend that the effect of Art 54(2) is that Spain has expressly agreed that a party with the benefit of an award under the ICSID Convention may apply to a 'competent court' for the recognition of the award and that the Federal Court is such a court. They submit that the maintenance by Spain of an entitlement to rely upon foreign state immunity in a recognition proceeding before a 'competent court' is incompatible with its agreement to Art 54(2). As such, so the argument runs, Spain must be taken to have agreed by treaty to submit itself to the jurisdiction of this Court within the meaning of s 10(2).
Alternatively, as its secondary argument, Spain submits that even if this Court concludes that 'execution' in Art 54(3) and Art 55 does not mean 'enforcement', nevertheless, the question of the proper construction of Art 55 can only be definitively resolved by the International Court of Justice. Until it is so determined by that court, Spain submits that its own interpretation of 'execution' is at least arguable so that its accession to Art 54 and Art 55 cannot represent its clear agreement to submit to jurisdiction.
However, those general concepts do not decide the issue before the Court which turns instead on the text of the ICSID Convention. What does it say? Art 54(1) requires Contracting States to recognise an award. Art 54(2) permits a party having the benefit of an award to apply to a competent court for its recognition. It also permits a party to apply for the enforcement of the award by application to a competent court. As such the article explicitly contemplates two distinct applications to the competent court (or other authority). If enforcement in Art 54(2) were synonymous with recognition this distinction would appear to be pointless. The article therefore recognises the distinction between the two applications and requires applications for both to be made to the 'competent court'. For completeness, I note that Spain did not submit, in response to the Respondents' contention that theirs was an application for recognition, that Art 54(2) did not contemplate such an application on its own.
It is in light of that distinction therefore that one then turns to Art 55. Focus on Art 55 is appropriate because it is the keystone of Spain's argument. It is only the status of that article as a non-derogation provision which equips Spain to submit that Art 54(2) does not necessarily involve a submission to jurisdiction.
For completeness, two matters should be noted. First, this problem does not arise where a Contracting State seeks to enforce an award against an investor. In such a case, no question of foreign state immunity ever arises. However, whilst this may be accepted, it does not provide any plausible justification for reading Art 54(2) and Art 55 so as to have the otherwise empty operation implied for them by Spain's construction. Secondly, it may be noted that the fact that recognition is wholly distinct from enforcement (including, if necessary, execution) is also reflected in the heading to Section 6: 'Recognition and Enforcement of the Award' where Art 54 and Art 55 are contained.
For those reasons, Art 55 does not apply to recognition proceedings and is unavailable to modify the meaning of Art 54(1) andin relation to such proceedings. It is true, as Spain correctly points out, that there are some parts of the ICSID Convention where 'enforcement' must include 'recognition'. For example, Art 50 (which is contained in Section 5 of Chapter IV) provides a mechanism by which the parties may submit a request for interpretation of an award to the Tribunal which rendered it via the Secretary-General of ICSID. Art 50(2) allows the Tribunal considering that request to 'stay enforcement of the award'. I accept the submission, in this context, that 'enforcement' would include an application for recognition. A similar jurisdiction is conferred by Art 51 in relation to the discovery of facts after the award which are thought decisively to affect the outcome. Article 51(4) gives the Tribunal an analogous power to stay the award pending resolution of that issue. Again, I would accept that in that context 'enforcement' must extend to recognition.
The view that a plea of immunity is not available in recognition proceedings is well-established and Spain's contentions are notable for their heterodoxy: Benvenuti & Bonfant v People's Republic of the Congo, Cour d'appel, Paris (26 June 1981) 1 ICSID Reports 368 at 371; 108 Journal du Droit International 843 at 845 ('Benvenuti'); Société Ouest Africaine des Bétons Industriels (SOABI) v Senegal, Cour de cassation (11 June 1991) 2 ICSID Reports 341; 118 Journal du Droit International 1005 ('SOABI'); Liberian Eastern Timber Corporation (LETCO) v Liberia, United States District Court for the Southern District of New York (12 December 1986) 2 ICSID Reports 383 at 387-388 ('LETCO'); Lahoud v The Democratic Republic of Congo  FCA 982 at  per Gleeson J ('Lahoud').
Many civilian jurisdictions have a procedure known as exequatur where a foreign judgment or arbitral award is recognised by a domestic court. After the grant of an exequatur a party may subsequently seek execution. It is established in relation to the ICSID Convention that recognition under Art 54(2) may be afforded by the grant of an exequatur: Benvenuti at 845.
In the United States the practice which appears to have been adopted by the United States District Court for the Southern District of New York in relation to recognition under Art 54(2) involves an order in this form (LETCO at 384):
…it is ORDERED that the annexed arbitration award, as rectified, in favour of LETCO be docketed and filed by the Clerk of this Court in the same manner and with the same force and effect as if it were a final judgment of this Court…
35 Recognition of awards
(1) The Supreme Court of each State and Territory is designated for the purposes of Article 54.
(2) An award may be enforced in the Supreme Court of a State or Territory with the leave of that court as if the award were a judgment or order of that court.
(3) The Federal Court of Australia is designated for the purposes of Article 54.
(4) An award may be enforced in the Federal Court of Australia with the leave of that court as if the award were a judgment or order of that court.
34 Investment Convention awards to prevail over other laws
Other laws relating to the recognition and enforcement of arbitral awards, including the provisions of Parts II and III, do not apply to:
(a) a dispute within the jurisdiction of the Centre; or
(b) an award under this Part.
So construed, s 35 would appear to achieve an outcome contrary to the plain words of Art 54(2). Article 54(2) requires Australia to provide a mechanism for a party to apply to a competent court for recognition of an award. This is relevant because, in general, a construction of the International Arbitration Act which gives effect to Australia's international obligations should, if possible, be preferred. As Gleeson CJ stated in Plaintiff S157/2002 v Commonwealth of Australia  HCA 2; 211 CLR 476 at 492 :
where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.
On the other hand, having concluded that 'recognise' and 'enforce' are distinct concepts in Art 54 there is perhaps something anomalous about concluding that they are not distinct for the purposes of s 35, particularly where Part IV is evidently intended to give effect to the ICSID Convention. This consideration may tend in the opposite direction to suggest that 'enforced' should not include 'recognised'.
I therefore conclude that the Court has jurisdiction to entertain a recognition proceeding under s 35(4). So to conclude does not, however, assist in identifying the procedural features of a recognition application. The question of procedure will be governed by the domestic law of the Contracting State in whose territory recognition is sought. Nevertheless, Art 54 and Art 55 provide some guidance on the legal consequences of recognition and from these consequences some guidance, limited perhaps, may be gleaned as to its procedural features.
The purpose of recognition is to give effect to the stipulation of Art 54(1) that each Contracting State (here, relevantly, Australia) will recognise the award as binding. Because it is binding, a party may seek to enforce its pecuniary obligations as if they were a final judgment of a court of that State: Art 54(1). But the binding effect of an award may also be asserted by other non-pecuniary methods which include, as French CJ and Gageler J observed in TCL at 552 , a plea of former recovery or the assertion of a res judicata or issue estoppel. Further, the binding effect extends not only to the pecuniary obligations imposed by the award but also to its non-pecuniary terms.
What Art 54(2) requires of a Contracting State is a procedure which will result in relief which, if granted, will have those kinds of effects. Furthermore, the procedure must be such as to enliven in a party with the benefit of an award an entitlement to apply for the kind of 'execution' referred to in Art 54(3). As the primary judge, with respect, correctly observed the expression 'the laws concerning the execution of judgments' can only refer to judgments which exist (for completeness, I reject out of hand Spain's submission that an application for a pre-trial asset seizure order can be described as a form of execution). But this does not mean that Art 54 requires that recognition should be afforded only by means of the entry of a judgment. It is instead merely to be understood as a reference to a body of law.
The statutory framework governing arbitral awards under the New York Convention is contained in Part II of the International Arbitration Act and is materially different to the provisions dealing with the ICSID Convention under Part IV. Nevertheless, it seems well-established in relation to such awards that recognition is afforded by the entry of a judgment: Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2)  FCA 276; 201 FCR 535 at - per Foster J (and the cases there collected). It seems difficult to identify any point of principle which would justify a departure from that practice in the case of ICSID awards.
On the other hand, it is also possible that recognition may also be granted by means of an order that the award be recognised 'as if' it were a judgment of the Federal Court. This was the approach of French CJ and Gageler J in TCL at 551  in relation to awards under the UNCITRAL Model Law although their Honours were clear that this was not the only procedure available ('An appropriate order, although not necessarily the only appropriate order … would be an order that the arbitral award be enforced as if the arbitral award were a judgment or order of the Federal Court': at ). Gleeson J used this 'as if' form of order in Lahoud which is the same procedure adopted by the United States District Court for the Southern District of New York in LETCO.
The Applicants, being parties to an arbitral proceeding, apply to the Court to enforce an award under section 35(4) of the International Arbitration Act 1974.
The Applicants seek the following orders:
1. Pursuant to s 35(4) of the International Arbitration Act 1974 (Cth), the Applicants have leave to have the award of the International Centre for Settlement of Investment Disputes in Case No. ARB/13/31 against the Respondent dated 15 June 2018 as rectified by the Award dated 29 January 2019 enforced as if it were a judgement of the Court.
2. A declaration that the Respondent has breached Article 10(1) of the Energy Charter Treaty by failing to accord fair and equitable treatment to the Applicants' investments.
3. The Respondent pay the Applicants EUR101,000,000.00.
4. The Respondent pay the Applicants interest on the amount of EUR101,000,000.00 from 20 June 2014 to 15 June 2018 at the rate of 2.07%, compounded monthly, and interest from 16 June 2018 to the date of payment at the rate of 2.07%, compounded monthly.
5. The Respondent pay the Applicants USD635,431.70 as a contribution to the payment of their share of the costs of the proceedings and GBP2,447,008.61 as a contribution to the payment of their legal representation costs and expenses.
6. Pursuant to s 43(1) of the Federal Court of Australia Act 1976 (Cth), the Respondent is to pay the Applicants' costs of this proceeding as agreed or assessed.
And coming back to your Honour's question about the "or", there's nothing in even the French or Spanish version that talks of immunity from recognition.
One way in which this court recognises international law as being – as having the status of a judgment of this court is by making a declaration that it does have that status, and the question is what flows from that.
In this case, the point is not so much the raising of a fresh ground but rather the narrowing of a ground pursued at trial. On the assumption that the Respondents did not squarely put their case at trial as one only of recognition, it is clear nevertheless that they did put it as one of recognition and enforcement. What they now wish to say is, therefore, not by way of supplement but rather in the nature of a subtraction. On the assumption that such a narrowing is governed by the principles in cases such as Coulton v Holcombe (a proposition I doubt), nevertheless I would still grant leave if necessary to pursue the matter in that fashion. The issue is solely whether the relief granted by the primary judge can be legally characterised as recognition within the meaning of Art 54(2). This involves no evidence and is purely a question of law. Further, it is a question of law decisive of this appeal and of considerable importance for the operation of the ICSID Convention. The ground also reflects the way the self-same issue has been approached by other courts considering the operation of Art 54(2): Benvenuti, SOABI, LETCO and Lahoud.
The central proposition underpinning his Honour's conclusion was that 'execution' could only refer to steps which took place after judgment. This followed from the reference in Art 54(3) to 'the laws concerning the execution of judgments'. That law took as its point of departure its application to judgments which necessarily existed. In that sense, 'execution' had to involve a reference to procedural steps which in domestic law post-dated judgment. In his Honour's view, the current proceeding was a proceeding for recognition and enforcement of the award and what was sought in it necessarily antedated the existence of a judgment. Consequently, because 'execution' in Art 55 was only concerned with post-judgment procedural steps it necessarily followed that it could not apply to pre-judgment steps such as, and including, an application for recognition and enforcement. Since it could not apply to the present proceeding, it followed that Spain had submitted itself to jurisdiction by Art 54(2).
The rules applicable to the interpretation of the ICSID Convention are, in substance, to be found in the Vienna Convention on the Law of Treaties. Opened for signature 23 May 1969. 1155 UNTS 331 (entered into force 27 January 1980) ('Vienna Convention'). Although as a matter of treaty law the Vienna Convention does not apply to the interpretation of the ICSID Convention (the conclusion of the ICSID Convention having preceded the inception of the Vienna Convention and the Vienna Convention having no retrospective application: see Art 4), it makes no difference as the treaty is 'no more than an indorsement or confirmation of existing practice': Thiel v Federal Commissioner of Taxation  HCA 37; 171 CLR 338 at 349 per Dawson J and 'the interpretation provisions of the Vienna Convention reflect the customary rules for the interpretation of treaties' (at 356 per McHugh J).
There was no dispute between the parties that the ICSID Convention had been done in English, Spanish and French. The Convention's testimonium records this fact: 'DONE at Washington, in the English, French and Spanish languages, all three texts being equally authentic…'. Article 33(1) of the Vienna Convention provides that where 'a treaty has been authenticated in two or more languages, the text is equally authoritative in each language'. Article 33(3) then provides that the 'terms of the treaty are presumed to have the same meaning in each authentic text' which is to an extent in tension with the linguistic imperatives of Art 33(1). This tension is resolved in Art 33(4) which requires that where a difference in meaning emerges which cannot otherwise be resolved by ordinary principles of interpretation 'the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.'
Art. 54(1) uses the word "enforce" twice. Art. 54(2) also refers to "enforcement". By contrast, Art.54(3) uses the word "execution" twice. This would suggest that the words "enforcement" and "execution" stand for different concepts. But a look at the equally authentic French and Spanish texts of the Convention yields a different picture. The French text consistently uses "l'exécution" five times in paras. 1, 2 and 3 of Art. 54. Similarly, the Spanish text is consistent in using "ejecutar" and "ejecuten" in Art. 54(1), "ejecución" in Art. 54(2) and "ejecutará" and "ejecución" in Art. 54(3). This means that a distinction between enforcement and execution cannot be sustained on the basis of the French and Spanish texts.
The three texts are equally authoritative and must be reconciled. Under Art. 33(4) of the 1969 Vienna Convention on the Law of Treaties, when a comparison of the authentic texts discloses a difference of meaning which cannot be reconciled by the Convention's other rules on interpretation, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. In the case of Art. 54 of the ICSID Convention, the interpretation that best reconciles the three texts would appear to be that the words "enforcement" and "execution" are identical in meaning. This is more plausible than the alternative of giving different meanings to the same French and Spanish words in paras. 1 and 2 on the one hand and in para. 3 on the other.
The Convention's drafting history yields no information that would explain this inconsistency. The answer may simply lie in the circumstances of the work on this Article which took place under great time pressure and is described by Broches as being characterized by great fluidity, sometimes bordering on confusion.
Art. 55 only applies to immunity from execution. It does not apply to immunity from jurisdiction. The question of immunity from jurisdiction does not arise in the context of the Convention.
Therefore, State immunity cannot be used to thwart proceedings for the recognition of an award.
This view stands in tension with Professor Schreuer's view, articulated in respect of Art 54, that enforcement and execution are the same and interchangeable. If they were, then Art 55 would not have the limited scope that he gives to it, unless execution has different meanings in Arts 54 and 55. That is not a satisfactory solution.
The best that can be suggested at this stage is that great caution should be exercised when using the word "enforcement" in the context of Art. 54. This Commentary uses "enforcement" as meaning the same as "execution" unless indicated otherwise.
A number of matters should be noted for completeness. First, I reject the Respondents' submission that what Professor Schreurer said about this problem was inconsistent with what he had said about Art 55. As I have explained, there is no contradiction. The Professor was of the view that Art 55 did not apply to proceedings for recognition. That is this case. Secondly, it is not necessary to consider Spain's submission that the UK Supreme Court's decision in Micula v Romania  UKSC 5; 1 WLR 1033 ('Micula') assists it on the construction question. Had it been necessary, I would have seen considerable force in the Respondents' submission that whilst the Supreme Court did make remarks supportive of Professor Schreuer's view as to the equivalence of enforcement and execution in Art 54(3), this was in quite a different context and without a focus on the issue in the present appeal.
In any event, even if I had arrived at the contrary view that the English text should control the French and Spanish texts I would have arrived at that conclusion by applying the principles of treaty interpretation reflected in the Vienna Convention. Having done so, there would be no remaining ambiguity so far as this Court is concerned. It is possible, I accept, that the International Court of Justice could render an opinion on the meaning of Art 54 and Art 55 for Art 64 of the ICSID Convention allows Contracting Parties to submit to that court any question of interpretation they have been unable to resolve. Its opinion would, no doubt, be more definitive than this Court's opinion. But that does not mean that this Court's opinion is not definitive in the meantime. The Court has determined what Spain agreed to. There is simply no room after that conclusion for a contention that somehow it can be said that it has not agreed.
Part IV only applies where, by virtue of a provision of Part II, the foreign State is not immune from the jurisdiction of the courts of Australia in the proceeding concerned.
(1) The appeal be allowed.
(2) Orders 1, 2, 3 and 4 of the orders made on 24 February 2020 are set aside.
(3) The appeal is stood over to a date to be fixed for further argument on the form of order for the recognition of the award and otherwise for the disposition of the appeal including on the question of costs.
(4) The parties should confer and formulate draft orders providing for the delivery of written submissions on these issues with a page limit of 10 pages per submission.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.
REASONS FOR JUDGMENT
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.
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