Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l.

COURT OR TRIBUNAL

High Court of Australia

DATE FILED (OR FIRST HEARING DATE)

17/04/2019

LITIGATION TYPE

Constitutional and Human Rights / State Accountability

SUBJECT MATTER

Renewable energy

REVIEW TYPE

Judicial review

SUMMARY

The facts that gave rise to the proceeding were as follows. From 1997 onward, Spain adopted legislation that provided subsidies for solar energy projects. The applicants relied on these incentives to substantially invest in solar power projects in Spain. Between 2012 and 2014, Spain revoked these financial incentives. This caused substantial harm to the value of the applicants' investments.

The applicants commenced arbitration proceedings saying that Spain's legislative actions decreased the value of its investments and this was in breach of their obligations under Art 10 of the Energy Charter Treaty to provide fair and equitable treatment. The applicants were successful at arbitration.

The dispute in Australia concerned the enforcement of this arbitration award for €101 million against Spain. Spain sought to avoid paying the amount pursuant to the Foreign States Immunities Act 1985 (Cth). The High Court held that Spain have waived its immunity in relation to recognition and enforcement (but not execution) of the award.

CASE DOCUMENTS

Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157
Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2021] FCAFC 3
Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l. [2023] HCA 11 (12 April 2023)