A London court ruled on 24 May 2023 that Spain can’t use state immunity nor EU law to avoid paying a €120 million ICSID arbitration award (the Antin award) for cutting back its economic incentives for renewable energy projects.

The investors, Infrastructure Services Luxembourg SÀRL and Energia Termosolar BV, argued that Spain was bound by its arbitration clause as a signatory to the Energy Charter Treaty Spain was seeking to set aside a January order that registered the arbitral award in England.

Spain’s challenge to the recognition of the Antin award by English Courts was based on grounds of sovereign immunity and European Union case law (mainly, the Achmea and the Komstroy cases).

In the wake of the Court of Justice of the European Union (CJEU) rulings in the mentioned cases, the judgment clarifies, from the point of view of English law, a protracted international legal argument regarding the legality of intra-EU arbitration awards. The London High Court ruled that those cases had no bearing on the Antin ICSID award’s ability to be enforced in England.

In addition, the combined effect of Article 54 of the ICSID convention and Section 2(2) of the State Immunity Act 1978 has also been decided for the first time in an English court to constitute a submission by a signatory state to the jurisdiction for the registration of ICSID awards in England.

English practitioners are now be able to shamelessly promote England as an enforcement-friendly jurisdiction for international arbitral awards involving non other than EU parties…

It’s no surprise that the judgment has been very well-received by practitioners of international arbitration and enforcement specialists throughout the common law world.

At the end of the day, this is not a matter of Spanish national pride because the mess was created by the CJEU. Its legal doctrines simply do not stick together as a matter of international law. And so says no less than a High Court in London.

The CJEU is a dogmatic giant with feet of clay. Its brilliant jurisprudence is rendered ineffective as soon as it crosses the borders of the EU. This is a matter of concern that undermines the credibility of the whole EU legal system. It is something that should lead to reflection by judges and policy-makers.

Usually, when a door closes, a window opens. And that window is being opened by common law jurisdictions. In the case of investors in renewable energies, these jurisdictions are not just England, but also the USA, Australia and even the BVI. These are offering legal shelter to EU investors, who have to flee their own home, unprotected by the “community of law” that the European Union falsely claims to be.

Or what did the CJEU think? Not everything had to be bad about Brexit, after all!

Congratulations to my good friend Nick Cherryman for obtaining this landmark victory.