Operafund Eco-Invest Sicav Plc v The Kingdom of Spain

Hearing dates: 28–29 October 2025

Approved Judgment

This judgment was handed down remotely at 9.30am on 10 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HIS HONOUR JUDGE Pelling KC SITTING AS A JUDGE OF THE HIGH COURT

HH Judge Pelling KC:

Introduction

These proceedings are concerned with the registration by the claimants of an arbitration award dated 6 September 2019 (“Award”) made in their favour in arbitration proceedings between them and the defendant, the Kingdom of Spain (“Spain”), under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (“ICSID Convention”). This is the hearing of an application by the current claimants (“claimants”) and Blasket Renewable Investments LLC (“Blasket”) for an order that Blasket be substituted for the claimants as Claimant in these proceedings. The application is made pursuant to CPR r.19.2(4) (a) on the basis that the claimants purported to assign their interests in the Award to Blasket by an assignment agreement between the Claimants and Blasket dated 31 January 2024 (the “Assignment Agreement”). The application is opposed by Spain, which alleges the Award is not assignable as a matter of international law (“assignability issue”) so that the jurisdictional requirements of CPR 19.2(4)(a) have not been satisfied.

A similar issue arose in proceedings between Blasket and Spain in the Federal Court of Australia – see Blasket Renewable Investments LLC v The Kingdom of Spain [2025] FCA 1028 (“FCA proceedings”). In those proceedings Blasket had been substituted on the basis that the making of that order would not prevent Spain from disputing the validity or efficacy of the purported assignment at trial — see Paragraph 36 of Stewart J's judgment. That is not a course that either party in these proceedings contend should be adopted here, because they each maintain that because this is an application under CPR r.19.2(4)(a) the issues that arise must be resolved finally and on the balance of probabilities applying the judgment of Mr Peter MacDonald Eggers KC sitting as a Judge of this court in Tactus Holdings Ltd (in administration) v Jordan and others [2025] EWHC 133 (Comm); [2025] 1 WLR 1602 (“ Tactus”).

I do not accept that Tactus requires such an all or nothing approach in all cases. On the contrary it recognises that there may be cases in which an evidential dispute prevents a court reaching a final conclusion on the issue and that in such cases the substitution issue should be resolved by making an order under CPR r.19.2(2) and/or 19.2(4)(b) (if the claimants did not want to remain parties to these proceedings) because that permits substitution where a court concludes “… it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.” I consider that generally such an approach is also likely to be appropriate where there is an issue of law that is not capable of final resolution because all the relevant evidence is not available or because the issue of law is otherwise one best left to a trial by reason of the novelty, general importance or legal complexity of the issue that arises – see by analogy Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd's Rep. I.R. 301 at [24]. However, different considerations may apply in a registration claim such as this because by definition there will be no trial. It is not necessary that I consider this issue further however, because, I have been able to resolve the issue finally as both parties have asked me to do.

The assignability issue was resolved against Spain in the FCA proceedings. Blasket maintains that the judgment in those proceedings creates an issue estoppel that precludes Spain from arguing the same point on this application. Spain challenges this submission. It is common ground that Spain can appeal as of right from the order to be made following the judgment in the FCA proceedings. It is also common ground that (a) the time for appealing is 28 days running from the date of the order made following the judgment in the FCA proceedings; and (b) that time has not yet started to run because the order has not yet been issued and sealed and will not be issued or sealed until after a hearing to settle the terms of the order due to take place towards the end of November 2025. Spain by its solicitor's evidence in these proceedings has confirmed an intention to appeal. If there is an appeal it is unclear when that appeal will be heard and determined.

Given that both parties consider I should resolve as a matter of law on the balance of probabilities whether an ICSID Convention arbitration award is assignable, the application hearing lasted for 2 days and has generated an application bundle and supplemental bundle running to over 3500 pages, an authorities bundle of over 2000 pages containing 65 different authorities, statutes, treaties, regulations and extracts from text books and a supplemental authorities bundle running to over 400 pages and containing a further 11 items.

Spain applied at the start of this hearing for an order adjourning or staying this application until after an appeal in the FCA proceedings. For reasons I gave at the time, I decided to postpone determining that application until after I had heard the arguments on the assignability issue in full. I did so because the arguments are lengthy, detailed and involve potentially important points of public international law that I could not assess properly in the context of an adjournment application at the start of the hearing. This led me to warn the parties that one order available to me remained to adjourn the application and direct that it and all other steps in these proceedings be stayed until after final determination of the appeal from Stewart J's judgment in the FCA proceedings or the expiry of Spain's time for commencing such an appeal. In the result I have been able to resolve the issues that arise without the need to adjourn these proceedings.

The Factual Background

The factual background is not seriously in dispute. Between July 2008 and July 2009, the Claimants invested in a number of solar energy plants in Spain allegedly in reliance upon representations made on behalf of Spain as to minimum tariffs and incentives which would be extended to renewable energy projects in Spain. It is alleged that between November 2010 and June 2014, Spain passed legislation revoking those tariffs and incentives, which the claimants alleged breached the terms of the Energy Charter Treaty 1994 (“ECT”) and caused the claimants substantial losses.

On 31 July 2015, the Claimants commenced arbitration against Spain seeking damages pursuant to Article 26 of the ECT. The arbitration was conducted under the rules applicable to ICSID Convention arbitrations. It is not in dispute for present purposes at least that the arbitration, the making of the award and its enforcement are all governed by the provisions of the ICSID Convention. On 6 September 2019, the Tribunal published the Award in which it found proved the breaches alleged by the claimants and ultimately awarded the claimants €29.3m.

On 9 August 2021, the Claimants applied without notice under s.1(2) of the Arbitration (International Investment Disputes) Act 1966 (the “1966 Act”) for an order registering the Award in England & Wales. On 14 September 2021, Cockerill J (as she then was) made the order sought. By operation of s.2(1) of the 1966 Act, the effect of registration was that the Award had the same force and effect for the purposes of execution as if it was a judgment of the High Court.

Following service, which delayed matters somewhat, on 6 January 2023, Spain applied to set aside Cockerill J's Order on grounds that included that Spain was immune from the English Court's jurisdiction under s.1(1) of the State Immunity Act 1978. As noted already, on 31 January 2024, the Claimants purported to assign to Blasket “ all of the rights, interests and benefits … under or in respect of the Award…”.

By an order made on 13 February 2024 Fraser LJ (sitting as a Judge of the Commercial Court) dismissed the set aside application save for the ground based on the State Immunity Act 1978. That issue has been resolved against the position adopted by Spain by the Court of Appeal in Infrastructure Services Luxembourg Sarl v. the Kingdom of Spain [2024] EWCA Civ 1257; [2025] 2 WLR 621 (“ ISL”). That being so, Fraser LJ adjourned final determination of the set aside application until after the Court of Appeal had handed down its judgment in ISL. Spain applied for and obtained permission to appeal to the Supreme Court and that appeal is due to be heard at the end of this year. By consent it has been directed that the set aside application be further adjourned until after hand down of the Supreme Court's judgment. In making that order Henshaw J directed that this application should be heard separately because “… it ought to be resolved promptly in order to provide clarity as to who the parties are.” It is common ground that the parties are bound by the decision of the Court of...