High Court of Australia clarifies the distinction between recognition and enforcement and execution, finding that Spain's accession to the ICSID Conv. entails a waiver of immunity from jurisdiction to recognise and enforce, but not to execute the award

On 12 April 2023, the High Court of Australia handed down its judgment on an appeal lodged by Spain concerning immunity from enforcement of an ICSID award in the case "Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l." (Case No. S43/2022).

This matter had previously been ruled upon by the Full Court of the Federal Court of Australia and a Federal Primary Judge. The Full Court had partially overturned the Primary Judge's decision which had ordered Spain to pay the award in full on the basis that Spain had waived its immunity from recognition in proceedings before the Australian courts. The High Court confirmed that both lower court orders related to the recognition and enforcement of the award and should not be quashed. However, the High Court clarified that Spain still maintained immunity from execution under Section 30 of the FSIA, as its consent to Articles 53-55 of the ICSID Convention did not entail a waiver of immunity from legal proceedings relating to execution.