(1) Pursuant to s 35(4) of the Arbitration Act, the applicants have leave to have the award of the Centre in Case No. ARB/13/36 against Spain dated 4 May 2017 enforced as if it were a judgment of the Court.
(2) Spain pay the applicants €128,000,000.00.
(3) Spain pay the applicants interest on the amount of €128,000,000.00 from 20 June 2014 to 4 May 2017 at the rate of 2.07%, compounded monthly, and interest from 5 May 2017 to the date of payment at the rate of 2.50%, compounded monthly.
(4) Pursuant to s 43(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Spain is to pay the applicants’ costs of this proceeding as agreed or assessed.
(1) Pursuant to s 35(4) of the Arbitration Act, the applicants have leave to have the award of the Centre in Case No. ARB/13/31 against Spain dated 15 June 2018 as rectified by the award dated 29 January 2019 enforced as if it were a judgment of the Court.
(2) Spain pay the applicants €101,000,000.00.
(3) Spain pay the applicants interest on the amount of €101,000,000.00 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.
(4) Spain pay the applicants US$635,431.70 as a contribution to the payment of their share of the costs of the proceedings and £2,447,008.61 as a contribution to the payment of their legal representation costs and expenses.
(5) Pursuant to s 43(1) of the FCA Act, Spain is to pay the applicants’ costs of this proceeding as agreed or assessed.
(1) it had jurisdiction to determine the claim under the ECT and the Investment Convention; and
(2) Spain had breached Art 10(1) of the ECT by failing to accord fair and equitable treatment to the applicants’ investments.
(1) It had jurisdiction to determine the claim under the ECT and the Investment Convention; and
(2) Spain had breached Article 10(1) of the ECT by failing to accord fair and equitable treatment to the applicants' investments.
(1) €112,000,000 as compensation;
(2) Interest on the sum awarded from 20 June 2014 to 15 June 2018 at the rate of 2.07%, compounded monthly, and interest at the rate of 2.07% from 16 June 2018 until the date of payment, compounded monthly; and
(3) US$635,431.70 as a contribution to the payment of the applicants’ share of the costs of the arbitral proceeding and £2,447,008.61 as a contribution to the payment of the applicants’ legal representation costs and expenses.
• First, the applicants submit that by becoming a Contracting Party to the ECT and a Contracting State to the Investment Convention, Spain submitted to the jurisdiction of this Court within the meaning of s 10 of the Immunities Act and has to that extent waived the immunity provided for in s 9.
• Second, the applicants submit that s 34 of the Arbitration Act, which excludes "other laws relating to the recognition and enforcement of arbitral awards", has the effect that the Immunities Act simply does not apply at the recognition and enforcement stage under the Arbitration Act and the Investment Convention.
• Third, the applicants submit that the relevant provisions of the Arbitration Act and the Investment Convention that are given the force of law, which were enacted after the Immunities Act, impliedly repealed the Immunities Act to the extent of the inconsistency.
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.
The notion expressed by the term "immunity" is that the Australian courts are not to implead the foreign State, that is to say, will not by their process make the foreign State against its will a party to a legal proceeding. Thus, the immunity may be understood as a freedom from liability to the imposition of duties by the process of Australian courts.
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.
(3) A submission under subsection (2) may be subject to a specified limitation, condition or exclusion (whether in respect of remedies or otherwise).
(4) Without limiting any other power of a court to dismiss, stay or otherwise decline to hear and determine a proceeding, the court may dismiss, stay or otherwise decline to hear and determine a proceeding if it is satisfied that, by reason of the nature of a limitation, condition or exclusion to which a submission is subject (not being a limitation, condition or exclusion in respect of remedies), it is appropriate to do so.
(5) An agreement by a foreign State to waive its immunity under this Part has effect to waive that immunity and the waiver may not be withdrawn except in accordance with the terms of the agreement.
(11) In addition to any other person who has authority to submit, on behalf of a foreign State, to the jurisdiction:
(a) the person for the time being performing the functions of the head of the State's diplomatic mission in Australia has that authority; and
(b) a person who has entered into a contract on behalf of and with the authority of the State has authority to submit in that contract, on behalf of the State, to the jurisdiction in respect of a proceeding arising out of the contract.
30 Immunity from execution
Except as provided by this Part, the property of a foreign State is not subject to any process or order (whether interim or final) of the courts of Australia for the satisfaction or enforcement of a judgment, order or arbitration award or, in Admiralty proceedings, for the arrest, detention or sale of the property.
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.
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.
Recognition and Enforcement of the Award
(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section, "award" shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52.
(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.
Article 31. GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as
an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.
Article 33. INTERPRETATION OF TREATIES AUTHENTICATED IN TWO OR MORE LANGUAGES
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
State immunity cannot be used to thwart proceedings for the recognition of an award. In addition, State immunity does not affect the res judicata effect of an award once it has been recognised.... State immunity only comes into play when concrete measures of execution are taken to enforce the award's pecuniary obligations, typically after recognition has been granted.
invoked the provision contained in Article 54 of the Convention which requires enforcement of such an award by Contracting States. That action, and reading the treaty as a whole, leaves little doubt that the signatories to the Convention intended that awards made pursuant to its provisions be given full faith and credit in their respective jurisdictions subject to such rights as are reserved by signatories thereunder. Therefore, Liberia clearly contemplated the involvement of the courts of any of the Contracting States, including the United States as a signatory to the Convention, in enforcing the pecuniary obligations of the award.
In light of the enforcement mechanism provided by the ICSID Convention, we agree with the District Court that Argentina ‘must have contemplated enforcement actions in other [Contracting] [S]tates’, including the United States.
A foreign state is competent to waive its immunity, and (by agreement to accept service or otherwise) to submit to the jurisdiction of the courts of any country. In the absence of express submission the more defensible view is that the local courts should only be able to enforce an award against a foreign state if, had the underlying dispute being brought before those courts for resolution, the foreign state would not have been immune. This will allow the enforcement of awards arising out of commercial transactions, or of other transactions of the foreign state over which the courts would have had jurisdiction. Private parties seeking the enforceability of foreign awards in a wider category of cases are of course free to stipulate to that effect in the agreement to arbitrate. Foreign states cannot convincingly object, in view of the widespread acceptance of international commercial arbitration and of the New York Convention of 1958, if a foreign arbitral award is enforced in this way. The Commission believes that it is sufficient to assert a similar rule for local arbitrations, leaving any more general abrogation of immunity to be provided for by agreement of the parties.
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