ICSID Enforcement

Court and bench. United States Court of Appeals for the D.C. Circuit, Nos. 23-7031, 23-7032 and 23-7038, decided 16 August 2024. Before Pillard and Pan, Circuit Judges, and Rogers, Senior Circuit Judge. Opinion for the Court by Pillard J; opinion dissenting in part by Pan J.

Posture. Three consolidated appeals from the District Court for the District of Columbia, which had split. In NextEra (656 F. Supp. 3d 201) and 9REN (2023 WL 2016933) the district court held it had jurisdiction and granted the investors anti-anti-suit injunctions restraining Spain from pursuing anti-suit relief in the Dutch and Luxembourgish courts. In Blasket (665 F. Supp. 3d 1) a differently constituted district court held Spain immune and dismissed. Spain appealed the first two; Blasket appealed the third.

Issues. (1) Whether the FSIA confers jurisdiction to confirm intra-EU ICSID and New York Convention awards against Spain. (2) If so, whether the anti-suit injunctions were an abuse of discretion.

Held on jurisdiction. Yes, under the arbitration exception, 28 U.S.C. § 1605(a)(6). The Court applied the three “jurisdictional facts” of Chevron v Ecuador at 204 — an agreement, an award, a treaty — of which only the first was contested. It held the ECT is itself an agreement made by Spain “for the benefit of” private investors, and declined to decide whether a second agreement arose “with” each investor on filing the notice of arbitration.

The ratio is the existence/scope distinction. Spain's Achmea/Komstroy argument — that Art 26 ECT never extended to EU nationals — attacks the scope of an agreement whose existence is conceded. Under binding circuit precedent, scope goes to the merits of enforceability, not to jurisdiction (Stileks at 878–79). For jurisdictional purposes the tribunal need only have purported to act under the ECT. The investors discharged their burden by producing the Treaty.

The Court expressly left the implied-waiver route under § 1605(a)(1) undecided, noting it remains “unsettled” in the Circuit notwithstanding the Second Circuit's contrary view in Blue Ridge. It also found it unnecessary to decide whether the ICSID Convention, ratified in 1966, falls within the FSIA's carve-out for pre-1976 “existing international agreements”.

Held on the injunctions. Abuse of discretion. The district court erred in two ways: it failed to grapple with the fact that the injunctions ran against a foreign sovereign, where comity concerns are “near their peak”; and it identified no domestic interest strong enough to outweigh them, the only interest advanced being a general public interest in encouraging arbitration. Pan J dissented at 1111, arguing the majority had substituted its own balancing for the district court's and had overlooked Spain's own lack of comity and the finding of irreparable harm.

Disposition. Affirmed in part and reversed in part in NextEra; reversed in 9REN and Blasket; remanded. Rehearing en banc denied 2 December 2024.

What it does not decide. The Court was emphatic: “we take no position on the ultimate enforceability of these awards.” The intra-EU objection survives as a merits defence.

Court and bench. High Court of Australia, S43/2022, decided 12 April 2023. Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ, in a single joint judgment — a deliberate signal of institutional weight.

Posture. Appeal from the Full Federal Court ([2021] FCAFC 3; orders corrected in (No 3) [2021] FCAFC 112), which had itself upheld Stewart J in [2020] FCA 157. The investors sought recognition and enforcement of a €101m ICSID award under Art 54 and s 35(4) of the International Arbitration Act 1974 (Cth). Spain entered a conditional appearance and asserted immunity under s 9 of the Foreign States Immunities Act 1985 (Cth). This was the first contested application in Australia to enforce an ICSID award.

Issues. (1) Whether Spain's agreement to Arts 53, 54 and 55 of the ICSID Convention was a submission to the jurisdiction of Australian courts “by agreement” under s 10 of the Immunities Act. (2) Whether any such submission extended only to “bare recognition” or also to enforcement — and whether the orders made below amounted to enforcement or strayed into execution.

Held. Spain had waived immunity, and the waiver was “unmistakable”. The Court rejected Spain's contention that a treaty waiver must always be express and can never be implied: Australian law on submission is consistent with customary international law, which admits waiver by express words including necessary implications from the terms of a treaty.

The reasoning that matters is the Court's treatment of the Convention's vocabulary at [26], [45], [73]. The ICSID Convention is authentic in English, French and Spanish. On a literal reading of the French and Spanish texts, “enforcement” and “execution” collapse into one another. The English text, however, sustains a threefold distinction, and the Court adopted it:

• Recognition — accepting the award as binding under domestic law.
• Enforcement — obtaining the court's assistance to give effect to the award's pecuniary obligations.
• Execution — the formal levying of the resulting judgment against property.

Article 54 waives immunity from the first two. Article 55 expressly preserves the domestic law of immunity from execution. The orders below, once corrected by the Full Court, were properly characterised as recognition and enforcement, so Spain's immunity plea failed.

Disposition. Appeal dismissed with costs. Judgment for €101m stands.

Significance. This is the analytical backbone of the entire third-country strategy, and simultaneously its ceiling. It is the authority a creditor cites to get through the courthouse door, and the authority a State cites to keep its property. The Court said nothing about how a creditor is ever to satisfy an award once execution immunity is intact — a silence later thrown into relief by [2024] FCA 234, which records that Spain had identified no Australian assets susceptible to execution at all.

Court and bench. UK Supreme Court, judgment of 4 March 2026, Lord Lloyd-Jones and Lady Simler writing for a unanimous bench.

Posture. Two linked appeals. Spain's award creditors had registered a €101m ICSID award under the Arbitration (International Investment Disputes) Act 1966; Zimbabwe's creditors had done likewise. Both States sought to set registration aside on state immunity grounds under s 1 of the State Immunity Act 1978. Both failed at first instance — before Fraser J at [67] in Spain's case and Dias J in Zimbabwe's — and in the Court of Appeal, though for divergent reasons. Both appealed.

Issue. Whether, by agreeing to be bound by Art 54(1) of the ICSID Convention, a Contracting State submits to the jurisdiction of the English courts by “prior written agreement” within s 2(2) of the SIA, so as to lose adjudicative immunity in proceedings to register an ICSID award against it.

Held. It does. Article 54(1) — each Contracting State “shall recognize an award … 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” — is a clear and unequivocal submission to the adjudicative jurisdiction of the courts of every other Contracting State.

Reasoning. The test is one of treaty interpretation under Arts 31–32 VCLT: terms interpreted in good faith, in their ordinary meaning, in context and in light of object and purpose. A waiver of immunity by treaty requires a “clear and unequivocal” expression of consent — but, following the Court of Appeal in General Dynamics v Libya, the words “submit” and “waiver” are not talismanic: if the words used, properly construed, amount to an unequivocal agreement to submit, s 2(2) is satisfied. The Court emphasised that this outcome is consistent with the Convention's object of producing final and binding awards supported by a fully reciprocal enforcement regime: once authenticity is established, a domestic court “may not re-examine the award on its merits, or the fairness and propriety of the proceedings and may not refuse to enforce”. The unconditional character of the States' own enforcement obligations under Art 54 entails that enforcement against them is similarly unconditional.

Disposition. Appeals dismissed.

What it leaves open — and this matters. Because s 2(2) was satisfied, the Court declined to address the s 9 “arbitration exception”, including whether a State is precluded by issue estoppel from arguing that an ICSID tribunal lacked jurisdiction. It also did not decide Spain's contention that no valid arbitration agreement existed with EU investors by reason of Achmea and Komstroy. That objection therefore survives, and the s 9 question remains live for the many States that joined the ICSID Convention before the SIA came into force.

The judgment is expressly confined to ICSID. It contrasts with CC/Devas v India, where ratification of the New York Convention alone was held not to be a s 2(2) submission — a distinction that makes the ICSID route materially stronger in England.

Court. United States District Court for the District of Columbia, Judge Beryl A. Howell, Memorandum and Order of 12 June 2026.

Posture. This is a post-judgment order, not a merits ruling — which is precisely why it is the most valuable judgment in the set. The court had confirmed the Watkins ICSID award in September 2025 and entered judgment for €77m plus compounded interest and €2,515,291.69 in costs. Spain appealed but neither paid nor posted a supersedeas bond, so the judgment remained enforceable. Blasket, as assignee, moved into discovery in aid of execution under FRCP 69(a)(2). Two disputes came to a head.

Issue 1. Whether SEPI (the Spanish State industrial holding company) and the Instituto Cervantes could be brought within the definition of “Spain” for discovery purposes, so as to be compelled to produce as if they were the judgment debtor.

Held. No — but without prejudice. The court began from the premise that post-judgment discovery against a foreign sovereign judgment debtor is available and is “quite permissive”, and that the FSIA does not itself forbid discovery into a sovereign's assets. It then separated two questions Blasket's theory had merged: discovery about state-linked entities, and discovery from them as though they were the sovereign. Both sides accepted the entities were juridically separate. Spain agreed to produce what it held concerning its relationship with them — contracts, memoranda of understanding, financial agreements, payments. But to compel the entities themselves, Blasket had to show alter ego or control such that their documents were effectively in Spain's custody, applying the separate-juridical-entity presumption of First National City Bank v Bancec at 626–27. The record did not support it.

Issue 2. Whether subpoenas to Raytheon (PATRIOT air and missile defence systems in Spain) and Palantir (an intelligence-fusion solution within Spain's Armed Forces Intelligence System) should be quashed.

Held. Quashed — again without prejudice, and again without deciding either discoverability or immunity. The court rejected Spain's broad position that anything touching potentially immune assets is categorically undiscoverable: Republic of Argentina v NML Capital at 144–45 rejects the notion that a creditor has “no business” seeking discovery about property it may not ultimately execute against. But the subpoenas “unabashedly” sought sensitive sovereign defence information, and comity justified sequencing: less sensitive assets first. FSIA § 1611(b)(2) shields property that is military in character or under the control of a military authority or defence agency.

Disposition. Spain's objection sustained without prejudice; motion to quash granted without prejudice.

Significance. The only judgment in this material that reaches actual sovereign property. It establishes both the breadth and the limits of the asset hunt, and yields a concrete roadmap: build the record on control, custody, beneficial ownership and alter ego before demanding that state-linked entities produce as the sovereign; and exhaust ordinary commercial assets before reaching for anything military. Comity is a case-management tool, not a shield.

Court. High Court of Justice, Business and Property Courts, Commercial Court. His Honour Judge Pelling KC, sitting as a Judge of the High Court. Judgment 10 November 2025, after a two-day hearing generating thousands of pages and more than 65 authorities.

Posture. The claimants had registered a €29.3m ICSID award under s 1(2) of the Arbitration (International Investment Disputes) Act 1966 in August 2021. Spain applied to set the registration aside, including on immunity grounds. On 31 January 2024 the claimants purported to assign “all of the rights, interests and benefits … under or in respect of the Award” to Blasket, and applied to substitute Blasket as claimant under CPR r 19.2(4)(a). Spain resisted, contending an ICSID award cannot be assigned, so no interest or liability had passed.

Issue 1 — issue estoppel. The claimants said Spain was precluded from re-litigating assignability, the Federal Court of Australia having decided it against Spain in [2025] FCA 1028. Held: no estoppel. The Australian judgment was not yet final and sealed; and, more fundamentally, Spain had appeared in Australia solely to contest jurisdiction on immunity grounds and had not submitted, so the judgment was not entitled to recognition in England against a sovereign under ss 31 and 33 of the Civil Jurisdiction and Judgments Act 1982.

Issue 2 — assignability. It was common ground that neither the ICSID Convention nor the ECT contains any express prohibition on assignment, so everything turned on whether “a party” in Art 54(2) — who may seek recognition and enforcement — extends to an assignee. Held: it does not at [51]. Reading the Convention contextually and under the VCLT, “a party” means a party to the arbitration in issue; only such a party may seek recognition or enforcement. Article 15 ECT, which expressly provides for subrogation to indemnifying States in defined circumstances, reinforced the conclusion that general assignment was not intended at [52]–[53]. There is no rule of customary international law either permitting or prohibiting assignment; the question is one of treaty construction. The Court expressly declined to follow the contrary US and Australian first-instance decisions, including Blue Ridge, as insufficiently grounded in Vienna Convention principles at [66].

Issue 3 — the English-law fallback. The claimants argued that even if the award were non-assignable, registration under the 1966 Act created new English-law rights equivalent to a High Court judgment, which are assignable. Held: no. Registration creates no new substantive rights and was not intended to. The contrary would yield an “entirely random outcome” in which an award's assignability turned on the jurisdiction in which it happened to be registered.

Disposition. Substitution application refused. Permission to appeal granted.

Significance. A direct and deliberate split with the US and Australia on a question that governs standing to chase sovereign assets. Blasket, the vehicle through which the Spanish awards are being aggregated, cannot enforce any of them in England.

Court. Federal Court of Australia, judgment of 29 August 2025.

Posture. Enforcement of the 9REN award (€41.76m) under Art 54 ICSID and s 35(4) of the International Arbitration Act 1974 (Cth). The proceeding had been stayed in April 2020 pending the ICSID annulment, revived on its dismissal, and then case-managed with RREEF to a contested hearing after the High Court decided [2023] HCA 11. Spain had filed a notice asserting immunity under s 9 of the Foreign States Immunities Act 1985 (Cth) in January 2023. Blasket, as assignee, sought substitution.

Issues. (1) Immunity — foreclosed in substance by the High Court. (2) Whether an ICSID award is assignable, such that Blasket could be substituted. (3) The form of orders, and the effect of immunity from execution.

Held. The award was recognised as binding and judgment entered for €41.76m, with interest at a rate equivalent to the 5-year Spanish Government bond yield compounded annually from 30 June 2014 until satisfaction. The court separately recognised and entered judgment on the annulment award for USD 1,131,803.62 with interest at 2% compounded annually.

On assignment, the court permitted Blasket to be substituted — holding, in substance, that an ICSID award may be assigned and that an assignee may enforce. This is the ruling that the English Commercial Court expressly refused to follow ten weeks later in OperaFund, and which the Commercial Court additionally held could not found an issue estoppel because Spain had appeared in Australia only to assert immunity.

On execution at [146]–[152], the court gave effect to the Art 54 / Art 55 division established by the High Court. The orders carry an express reservation which every award creditor should read carefully: “Nothing in these orders shall be construed as derogating from the effect of any law relating to immunity of the respondent from execution.”

Disposition. Judgment for the applicants; Blasket substituted; execution immunity expressly preserved. The assignment ruling remains subject to appeal.

Significance. The judgment does two things at once, and they pull in opposite directions. It is the high-water mark of creditor-friendly reasoning — recognition, money judgment, interest, and a tradable award. And it is the clearest statement anywhere that none of that reaches the assets. A creditor leaves the Federal Court of Australia holding a judgment for €41.76m and a formal acknowledgement that Spain's property remains beyond its reach.

Court. UK Supreme Court, judgment of 19 February 2020.

Posture. The claimants had registered a 2013 ICSID award (arising under the Sweden–Romania BIT, not the ECT) in England under the 1966 Act. Enforcement had been stayed pending the outcome of proceedings in the EU courts concerning the European Commission's decision of March 2015 that payment of the award would itself constitute unlawful State aid. The question for the Supreme Court was whether that stay should be lifted.

The EU-law problem. Romania acceded to the EU on 1 January 2007 — after the investments, before the award. The Commission's position was that the duty of sincere cooperation obliged the UK courts to stay enforcement so as not to cut across the EU State aid regime. On its face this is the same argument that has since defeated creditors in Luxembourg and elsewhere within the Union.

Held. The stay was lifted. The reasoning turns on Article 351 TFEU, which preserves rights and obligations arising from agreements concluded before a Member State's accession, as against third States. The UK's obligation to enforce ICSID awards under the 1966 Act was an obligation assumed towards all ICSID Contracting States — a body that includes many States outside the European Union — and it was assumed before the UK's accession to the EU. It followed that the duty of sincere cooperation could not override it. The Commission responded by launching infringement proceedings against the UK.

Significance. This is the only judgment in the entire body of material in which the EU-law objection is defeated on its own terms, from within the EU legal order. Every other successful enforcement has depended on the forum simply not being bound by the CJEU. Micula shows there is a narrow bridge across — but it is a bridge available only where the ICSID obligation predates accession and is owed to third States, and its post-Brexit utility for a UK court is now largely historical.

The contrast that proves the point. The Luxembourg Court of Cassation, on 14 July 2022, refused enforcement of the same award: on Romania's accession, it reasoned, the BIT's arbitration agreement became incompatible with EU law, lacked force from that date, and Romania therefore never waived jurisdictional immunity. Same award, same treaty, opposite result — the whole case for leaving the EU legal order, in a single pair of judgments.

What followed in the United States. The District Court for the District of Columbia entered judgment of approximately USD 356m in September 2019, affirmed on appeal. Enforcement continued notwithstanding Romania's position that the award had been satisfied, and the court engaged its contempt powers — sanctions of roughly USD 21m, with penalties reportedly accruing at around USD 100,000 per week: the most aggressive coercion any court has yet applied in this field.

Court. United States District Court for the District of Columbia, 14 August 2025 — one of a cluster of judgments handed down that day alongside the companion Blasket/RREEF, Blasket/InfraRed and Infrastructure Services proceedings, once the D.C. Circuit's mandate in NextEra had settled the jurisdictional question.

Posture. Petition to confirm a €33.7m ICSID award. Jurisdiction was no longer seriously in issue: NextEra had held that the FSIA arbitration exception applies because the ECT is an agreement “for the benefit of” investors, and that Spain's intra-EU objection goes to scope rather than existence. What remained were the substantive defences Spain had reserved — the merits questions the D.C. Circuit had pointedly declined to decide.

Issue. Whether EU law furnishes Spain with a defence to enforcement, either through the doctrine of foreign sovereign compulsion or through international comity.

The argument. Spain contended it faced irreconcilable obligations. EU law, as expressed in the European Commission's State aid decisions, forbade it from paying an award the Commission regarded as unlawful aid; the ICSID Convention required payment. Foreign sovereign compulsion permits a defendant subject to conflicting legal commands from two sovereigns to raise the conflict as a defence to conduct in one State that violates the law of another.

Held. Both defences rejected. Spain is itself a signatory to the ICSID Convention, and US courts are bound by their own statutory and treaty obligations to recognise foreign arbitral awards without re-examining the awards' compliance with EU law. Any conflict in Spain's obligations is a consequence of its own treaty commitments, freely undertaken; a State cannot manufacture a defence out of a conflict of its own making. The comity argument failed for substantially the same reason. Summary judgment was granted for the investors.

Significance. Cube is the merits-stage counterpart to NextEra, and together they close the circle. NextEra held that EU law is not a jurisdictional bar; Cube holds that it is not a merits defence either. The intra-EU objection, which the D.C. Circuit expressly preserved when it said it took “no position on the ultimate enforceability of these awards”, has now been tested on the merits in the district court and has failed.

Caveat. This is a district court judgment and, so far as the available record shows, has not been tested on appeal on the merits point. It should be cited as persuasive on the compulsion and comity defences, not as settled circuit law.

Court. Federal Court of Australia, Stewart J, 24 February 2020. Reported at (2020) 142 ACSR 616.

Posture. Two ICSID awards — Eiser's (€128m) and Infrastructure Services/Antin's (€101m) — brought for recognition and enforcement in the Federal Court under Art 54 and s 35(4) of the International Arbitration Act 1974 (Cth). Masdar pursued Australian enforcement in the same wave, on its own proceeding. Spain resisted on the sole basis that, as a foreign State, it was immune under s 9 of the Foreign States Immunities Act 1985 (Cth). This was the first occasion on which an Australian court had to decide whether accession to the ICSID Convention strips a State of immunity.

Issue. Whether Spain's agreement to Arts 53–55 of the ICSID Convention amounted to a submission to the jurisdiction of Australian courts “by agreement” within s 10 of the Immunities Act.

Held. It did at [190]. Spain was not immune from proceedings to recognise and enforce the awards.

Appellate history — and why the correction matters. The Full Court upheld the immunity holding in [2021] FCAFC 3 but corrected the orders in (No 3) [2021] FCAFC 112. Stewart J's orders had gone beyond recognition: they required Spain “to do something”, namely pay the sums awarded. That, the Full Court held, strayed into territory Art 55 reserves to the domestic law of execution immunity. The orders were recast to recognise the award as binding and to enter judgment against Spain for €101m — no more. The High Court then affirmed unanimously in [2023] HCA 11.

That correction is not a technicality. It is the moment the Art 54 / Art 55 boundary was drawn on the face of an order, and it is why every subsequent Australian judgment carries the express execution-immunity reservation.

Court. General Division of the High Court of Singapore, [2026] SGHC 43.

Posture. The creditors had registered the NextEra ICSID award, and the annulment decision, in Singapore. Spain applied to set the registration aside, asserting sovereign immunity under the State Immunity Act 1979 and contending that the award was a nullity because, as a matter of EU law, no valid arbitration agreement had ever existed with EU investors.

Issues. (1) Whether Spain enjoyed immunity from the adjudicative jurisdiction of the Singapore courts. (2) Whether the Achmea/Komstroy objection could be run in Singapore. (3) Whether public policy afforded a ground of resistance.

Held. Registration upheld on all three.

On immunity at [70]–[71], Spain's accession to the ICSID Convention constituted an express written submission to the jurisdiction of the courts of other Contracting States for the purposes of s 4 of the State Immunity Act. The reasoning aligns with the High Court of Australia and, subsequently, the UK Supreme Court — three apex or superior courts in three legal systems converging on the same construction of Art 54.

On EU law at [122], the primacy of EU law operates only within the EU legal order. It has no application in Singapore, whose courts are not bound by the Court of Justice and owe no duty of sincere cooperation. Spain's intra-EU objection therefore could not be run.

On public policy at [128], public policy is not a recognised ground for resisting recognition of an ICSID award — a point of some importance, since public policy is the residual gateway through which resistance to a New York Convention award is customarily channelled under Art V(2)(b). The ICSID regime admits no such gateway.

Significance. Singapore's entry into this field matters strategically, not merely doctrinally. It establishes a fourth major common-law enforcement forum, in a jurisdiction with substantial sovereign commercial activity, and it forecloses the public-policy argument in terms. The convergence of the D.C. Circuit, the High Court of Australia, the UK Supreme Court and the Singapore High Court on the effect of Art 54 is now the strongest feature of the creditor's case.

Secondary source used — the paragraph pinpoints are taken from a published case note; the judgment could not be located in free access. Will update with primary source when accessed.

Status. This is the one case in the group with no national-court enforcement judgment. It is included because the annulment decision is itself a reasoned adjudication of the intra-EU objection, and because the enforcement proceedings now on foot in Switzerland and the United States are the leading test of whether the Spanish playbook transfers to Italy.

The award. German and Austrian investors in Italian solar photovoltaic projects, injured by the Spalma-incentivi decree of 2014–15. The tribunal, in an award of 14 September 2020 delivered before Komstroy, rejected Italy's post-Achmea intra-EU objection and found by a majority that Italy had breached Art 10(1) ECT in three respects — fair and equitable treatment, the impairment clause prohibiting unreasonable or discriminatory measures, and the umbrella clause. It awarded €16m.

The annulment decision (31 July 2023). Italy applied under Art 52, contending that the tribunal had manifestly exceeded its powers by exercising jurisdiction over an intra-EU claim and by failing to apply EU law, and that it had failed to state reasons by not engaging with the contrary awards in Belenergia and SunReserve.

The ad hoc committee dismissed the application. It was the first committee to rule on an ECT dispute after Green Power v Spain — the SCC award in which a tribunal had, for the first time, upheld an intra-EU objection — and the reasoning is therefore of some significance. The committee held that no heightened standard of reasoning is imposed on a tribunal merely because other tribunals have reached different conclusions on similar facts, and that an inadequate treatment of prior awards cannot of itself found an annulment. Annulment is not an appeal, and divergence among tribunals is not a defect.

Enforcement. Italy opposes enforcement on intra-EU grounds. The creditors are proceeding in Switzerland and the United States. A motion to dismiss or stay was filed in the US action on 9 February 2026, and the European Commission communicated with the Italian authorities on State aid on 3 March 2026 — the same instrument deployed against Romania (SA.38517) and Spain (SA.54155).

Why Switzerland. The Swiss Federal Supreme Court has held, in a decision of 3 April 2024 (4A_244/2023 at 7.8.2), that it is not bound by Komstroy, that it sees no conflict between EU law and Art 26 ECT, and that international law does not in any event accord primacy to EU law. That is as clear a statement of the third-country premise as exists anywhere.

The sunset point. Italy withdrew from the ECT with effect from 1 January 2016 — long before Spain and the EU. Under Art 47(3), pre-2016 Italian investments retain protection for twenty years, to roughly 2036.

Secondary source used — the Swiss Federal Supreme Court pinpoint and the current enforcement status are taken from secondary reporting. Will update with primary source when accessed.

The D.C. Circuit's judgment of 16 August 2024 112 F.4th 1088, at 1105 resolved NextEra together with 9REN and Blasket in a single opinion, and it is the foundation of US enforcement of intra-EU ICSID awards.

Spain defended on two fronts: sovereign immunity under the FSIA, and anti-suit injunctions sought in the Dutch and Luxembourgish courts (with penalties of €30,000 and €100,000 per day respectively). The district court found jurisdiction and granted the investors “anti-anti-suit” injunctions in reply.

On jurisdiction the Court affirmed. Applying Chevron v Ecuador at 204, a court must find three jurisdictional facts: an arbitration agreement, an award, and a treaty governing enforcement. Only the first was contested. The Court held the ECT is itself an agreement made by Spain “for the benefit of” private investors under 28 U.S.C. § 1605(a)(6). Decisively, Spain's Achmea/Komstroy objection goes to the scope of a concededly existing agreement, not its existence — and scope is a merits question, not a jurisdictional one (Stileks). The Court noted the EU had proposed a disconnection clause during the ECT negotiations and that it was dropped.

Two limits matter. The Court took “no position on the ultimate enforceability of these awards”; and it reversed the anti-suit injunctions as an abuse of discretion, comity concerns against a foreign sovereign being “near their peak.” Judge Pan dissented on that point at 1111.

Singapore reached a parallel result in [2026] SGHC 43: accession to the ICSID Convention is an express written submission to the courts of other Contracting States; EU law primacy operates only within the EU legal order; and public policy is not a ground for resisting an ICSID award.

A Luxembourgish investor which put roughly €211m into Spanish solar. The tribunal awarded €41.76m; annulment was dismissed in November 2022.

The US proceedings ran in lockstep with NextEra and were resolved in the same D.C. Circuit opinion. The 9REN tribunal's own reasoning is quoted at length there as “illustrative”: “It would have been a simple matter to draft the ECT so that Article 26 does not apply to disputes between an Investor of one EU Member State and another EU Member State as respondent” — but “that was not done.”

The Australian proceeding reaches further down the chain. Judgment was entered under s 35(4) of the International Arbitration Act 1974 (Cth) for €41.76m plus interest at the 5-year Spanish Government bond yield compounded annually from 30 June 2014, and separately for USD 1,131,803.62 on the annulment award. The Court also permitted Blasket to be substituted as assignee — a ruling the English court would later refuse to follow.

Secondary source used — the FCA 1028 execution-immunity pinpoints are taken from a secondary record. Will update with primary source when accessed.

The most heavily litigated of the Spanish awards, and the source of the two leading appellate authorities on ICSID enforcement against a sovereign.

Australia. The High Court dismissed Spain's appeal unanimously on 12 April 2023 in Kingdom of Spain v Infrastructure Services Luxembourg Sàrl [2023] HCA 11 at [26], [45], [73], [79]. Its central contribution is a tripartite distinction drawn on a Vienna Convention reading of Arts 53–55 — a distinction the French and Spanish texts of the Convention tend to collapse. Recognition is the obligation to accept the award as binding. Enforcement is obtaining the court's assistance as to the pecuniary obligations. Execution is levying against property. Spain's ICSID accession was an unmistakable waiver of immunity under s 10(2) of the Foreign States Immunities Act — but only from the first two. Spain's argument that a treaty waiver must always be express, never implied, was rejected: it arose by necessary implication.

United Kingdom. Fraser J [2023] EWHC 1226 (Comm) at [67] upheld registration in May 2023, holding that “the EU treaties do not trump” Spain's ICSID and ECT obligations, “nor do they override the relevant domestic law mechanism in the United Kingdom.” On 4 March 2026 the Supreme Court [2026] UKSC 9 unanimously dismissed the appeals of Spain and Zimbabwe: Art 54(1) is a clear and unequivocal submission to the adjudicative jurisdiction of every other Contracting State's courts, satisfying s 2(2) of the State Immunity Act 1978. Once authenticity is established a domestic court “may not re-examine the award on its merits … and may not refuse to enforce.” The Court did not decide the Achmea/Komstroy point, which remains open.

The single most important case in this material, because it is the only one that gets past recognition and into the actual hunt for attachable sovereign property.

The award creditors assigned their rights to Blasket Renewable Investments LLC, a Delaware vehicle aggregating Spanish awards. In September 2025 the District Court for the District of Columbia confirmed the award and entered judgment for €77m plus compounded interest and €2,515,291.69 in costs. Spain appealed, maintaining that EU law prevented payment absent European Commission approval.

Spain neither paid nor posted a supersedeas bond. Blasket therefore launched post-judgment discovery under FRCP 69(a)(2) to locate attachable assets. On 12 June 2026 Judge Beryl Howell No. 20-1081 (BAH), at 9–16 ruled on two contested categories.

State-linked entities. Blasket sought to sweep SEPI (the State industrial holding company) and the Instituto Cervantes into the definition of “Spain”, so they would produce as the judgment debtor. The Court sustained Spain's objection — but without prejudice. Both sides accepted the entities were juridically separate. Blasket may take broad discovery from Spain about them, particularly if they hold assets beneficially owned by Spain; but compelling the entities themselves required an alter-ego or control showing the record did not yet support.

Defence contractors. Blasket subpoenaed Raytheon (PATRIOT air and missile defence systems in Spain) and Palantir (an intelligence-fusion solution within Spain's Armed Forces Intelligence System). The Court quashed both, again without prejudice. It declined Spain's broad submission that anything touching potentially immune assets is categorically undiscoverable — NML Capital rejects the idea that a creditor has “no business” seeking discovery about property it may not ultimately execute against. But sequencing mattered: the subpoenas “unabashedly” sought sensitive defence information, and comity required Blasket to exhaust less sensitive assets first.

The outlier — and a serious structural obstacle to the award-acquisition model on which third-country enforcement now depends.

Maltese and Swiss investors obtained a €29.3m award, registered it in England under the 1966 Act, and then purported to assign all rights to Blasket, applying to substitute it as claimant under CPR r 19.2(4)(a). Spain objected that ICSID awards are not assignable, so no interest could have passed. Judge Pelling KC found for Spain on all three issues.

Issue estoppel failed: the Federal Court of Australia had decided assignability against Spain, but that judgment was not final, and more fundamentally Spain had appeared in Australia solely to assert State immunity and had not submitted to the jurisdiction, so it was not entitled to recognition in England against a sovereign.

Assignability failed on treaty construction. Neither the ICSID Convention nor the ECT expressly prohibits assignment, so the question was whether “a party” in Art 54(2) extends to an assignee. Reading the Convention under the Vienna Convention, the Court held it means a party to the arbitration in issue at [51]. Art 15 ECT (subrogation), which expressly provides for assignment to indemnifying States, reinforced that general assignment was not intended at [52]–[53]. There is no rule of customary international law either way. The Court expressly declined to follow the contrary US and Australian decisions, considering them insufficiently grounded in VCLT principles at [66].

The fallback failed too: registration under the 1966 Act creates no new assignable English-law rights. To hold otherwise would produce an “entirely random outcome” in which assignability depended on where an award happened to be registered, and an “entirely undesirable possibility” that registration might permit assignment in some jurisdictions but not others at [78]. Permission to appeal was granted.

Not an ECT case — it arises under the Sweden–Romania BIT — but the most instructive intra-EU ICSID saga, and the only one in which creditors have advanced meaningfully into execution.

Swedish investors built an integrated food-production operation in Romania relying on incentives under EGO 24/1998. Romania repealed them in 2004, ahead of EU accession, as unlawful State aid. The tribunal awarded RON 376,433,229 plus RON 424,159,150 in interest in December 2013. Romania acceded to the EU on 1 January 2007 — after the investments, before the award.

The Commission then did to Micula what it has since attempted against Spain and Italy: it decided in March 2015 that payment would itself be unlawful State aid. The General Court annulled that decision in 2019; the Court of Justice later restored it.

The enforcement results diverge sharply along the EU / non-EU fault line. In the United Kingdom, the Supreme Court lifted the stay in [2020] UKSC 5 — the most powerful judicial answer to the EU-law objection anywhere in this material, and it works from inside the EU legal order. The UK's duty to enforce ICSID awards was assumed towards third States (all Contracting States, including non-EU ones) before UK accession to the EU, so by virtue of Article 351 TFEU it was unaffected by the duty of sincere cooperation. The Commission launched infringement proceedings against the UK in response.

By contrast the Luxembourg Court of Cassation refused enforcement in July 2022: on Romania's EU accession the BIT's arbitration agreement became incompatible with EU law, lacked force from that date, and Romania therefore never waived immunity. That is the EU legal order working exactly as designed — and precisely why creditors leave it.

Secondary source used — the Luxembourg Court of Cassation reasoning and the US contempt figures are taken from secondary reporting. Will update with primary source when accessed.

Cube completes the picture NextEra began. NextEra opened the courthouse door on jurisdiction; Cube shows that once inside, Spain's EU-law defences do not survive contact with 22 U.S.C. § 1650a.

Decided on 14 August 2025 alongside the companion Blasket/RREEF, Blasket/InfraRed and Infrastructure Services judgments, the court applied NextEra to dispose of the jurisdictional objection and then confronted the defences Spain had reserved.

Foreign sovereign compulsion. Spain argued it faced irreconcilable obligations: EU law forbade paying an award the Commission regarded as unlawful State aid, while the ICSID Convention required payment. The doctrine allows a defendant subject to conflicting obligations under two sovereigns to raise a defence. The court rejected it: Spain is itself a signatory to the ICSID Convention, and US courts must recognise foreign arbitral awards under their own statutory and treaty obligations without re-examining the awards' compliance with EU law. Spain's conflicting obligations were a consequence of its own treaty commitments.

Comity failed for the same reason. Summary judgment was granted for the investors.

Structurally distinctive, and the distinction matters. The lead claimant is incorporated in Jersey — a Crown Dependency outside the European Union — while the second is Luxembourgish. The dispute is therefore only partly intra-EU, which weakens the Achmea/Komstroy objection at its root and made the award an attractive enforcement vehicle.

The tribunal rejected the intra-EU objection in June 2016, found liability in November 2018, and awarded €59.6m by majority in December 2019 with interest at 2.07% compounded monthly.

In the US the proceeding is governed by NextEra. In Australia it was case-managed with 9REN and determined on 29 August 2025. Note that Spain's request to ICSID for revision of the award triggered a provisional stay by the Secretary-General in June 2023 — a reminder that ICSID's internal machinery can suspend enforcement abroad even where the domestic court has jurisdiction.

UK claimants holding equity in two concentrated solar projects in Andalucía and Extremadura, arising from the same package of Spanish reforms.

Award: 2 August 2019. EUR 28.2 million (EUR 75.7m claimed). Spain's annulment application was dismissed on 10 June 2022, and its application for revision was rejected for manifest lack of legal merit on 8 March 2021.

The claimants' nationality repays attention. They are British; the UK left the EU on 31 January 2020 and withdrew from the ECT with effect from 27 April 2025. At the time of investment and arbitration they were EU investors and the dispute was intra-EU; today they are extra-EU. That shift does not retrospectively cure or create an Achmea problem — jurisdiction is assessed as at the relevant date — but it makes the intra-EU characterisation of this award more contestable than for the Dutch and Luxembourgish claimants, and the point is worth pleading.

The tribunal rejected Spain's objections and ordered payment of pre- and post-award interest, the costs of the arbitration, and 66.66% of the claimants' legal costs. In the US the matter is a follower of NextEra. A motion for substitution was filed and opposed by Spain — the same assignment issue that later split the English and Australian courts.

A Dutch claimant — Masdar is owned and controlled by Abu Dhabi Future Energy Company — and one of the earliest post-Achmea awards in which a tribunal affirmed jurisdiction notwithstanding the CJEU's March 2018 ruling. Award of 16 May 2018, EUR 64.5 million (EUR 260m claimed).

Its significance is Australian. Masdar pursued enforcement in the same wave as Eiser and Antin, whose consolidated proceeding produced the judgment of Stewart J in [2020] FCA 157 at [190] founds the Australian line: Spain's accession to the ICSID Convention, and its agreement to Arts 53–55, was a submission to jurisdiction under s 10 of the Foreign States Immunities Act. That was upheld by the Full Court — whose orders were corrected so as not to trespass beyond recognition into execution — and finally by the High Court in [2023] HCA 11.

The principal intra-EU ICSID investor win against Italy, and proof that the third-country strategy is not confined to Spain.

German and Austrian claimants; the dispute arose from Italy's Spalma-incentivi decree curtailing solar incentives. The tribunal, in an award delivered before Komstroy, rejected the post-Achmea intra-EU objection and found Italy in breach of Art 10(1) ECT on fair and equitable treatment, the impairment clause and the umbrella clause, awarding €16m.

Italy's annulment application was dismissed on 31 July 2023 — the first ad hoc committee to rule on an ECT dispute after Green Power v Spain (in which an SCC tribunal had, for the first time, upheld an intra-EU objection). The committee held that no heightened standard of reasoning applied merely because other tribunals had reached different conclusions on similar facts.

Italy opposes enforcement as intra-EU, and the claimants are pursuing Switzerland and the United States. The pattern is precisely that of the Spanish awards.

Italy is a useful comparator on the sunset clause: it withdrew from the ECT with effect from 1 January 2016, so Art 47(3) protection for pre-2016 investments runs to roughly 2036. Italy's other ICSID renewables cases — Blusun, Belenergia, Silver Ridge, Eskosol, Encavis — were all decided in the State's favour, which is why ESPF stands alone.

Secondary source used — the Swiss Federal Supreme Court pinpoint and the current enforcement status are taken from secondary reporting. Will update with primary source when accessed.

Court and bench. United States Court of Appeals for the Second Circuit, Docket No. 97-7224. Argued 24 November 1997, decided 2 September 1998. Before Oakes and Walker, Circuit Judges, and Brieant, District Judge (sitting by designation). Opinion by Walker, Circuit Judge.

Facts. In 1988 Europcar, an Italian car-hire company, agreed to provide rental services in Italy to customers referred by Maiellano, an American travel agent. The contract was governed by Italian law and provided for arbitrato irrituale in equità — a distinctively Italian form of “informal” arbitration on equitable grounds. A dispute arose in 1991 over which party was entitled to VAT refunds remitted by the Italian tax authority. A three-arbitrator panel issued an award for Europcar in June 1992.

The parallel proceedings. This is the feature that makes the case useful. In July 1992 Europcar went to the Italian courts to confirm the award; Maiellano counter-attacked there, seeking to set it aside for fraud, alleging that a 1979 agreement the arbitrators had referred to bore a forged signature. The Tribunal of Rome consolidated the actions and confirmed the award in March 1996; Maiellano appealed to the Roman Court of Appeals. Meanwhile — and before the Tribunal of Rome had ruled — Europcar had also filed in the Eastern District of New York (Amon J) in August 1994 to enforce the same award under the New York Convention and 9 U.S.C. § 207. The district court granted summary judgment for Europcar, USD 1,102,283 plus interest and costs. Maiellano appealed.

Issues. Four were argued: (1) whether arbitrato irrituale produces an award enforceable under the Convention at all; (2) whether the parties intended to be bound; (3) whether enforcement of an award said to rest on a forged contract offends US public policy; and (4) whether the district court should have adjourned its decision to await the outcome of the Italian appeal.

Held (1) — enforceability of arbitrato irrituale: left open. The Court noted the question was one of first impression for any US federal court, that Germany's highest court had held such awards not enforceable under the Convention while the Italian Corte di Cassazione had held that they were, and that the point was genuinely close. Because it was not necessary to the disposition, the Court expressly declined to decide it — “we leave decision on the matter for another day.”

Held (2) — intent to be bound: yes. Both agreements described the arbitration as “final”, and the arbitrators had found the parties intended to be bound. A confirming court does not revisit the arbitrators' findings absent extraordinary circumstances. An arbitrato irrituale award is contractually binding on the parties even if it is not automatically enforceable in Italy — and, the Court held, an award need only be binding on the parties, not judicially enforceable in the seat, to fall within the Convention.

Held (3) — public policy: enforcement does not offend it. This is the first of the two propositions the case is cited for. The Art V(2)(b) public-policy exception at 315 “is to be construed very narrowly and should be applied only where enforcement would violate our most basic notions of morality and justice.” The Court drew the distinction that decides most such arguments: a fraudulently obtained arbitration agreement or award may engage public policy, but the alleged forgery of the underlying contract is a matter for the arbitrators alone (Prima Paint). If Maiellano did not put the forgery to the arbitrators the point was forfeited; if it did, it could not relitigate it on enforcement. And an award cannot be resisted merely because the tribunal may have erred on the law or the facts.

Held (4) — adjournment: vacated and remanded. This is the enduring contribution. The Court first settled two preliminary points that had divided the district courts: the decision whether to adjourn under Art VI belongs to the district court in the first instance, and it is reviewed only for abuse of discretion. It then held that the district court had looked only to the general objectives of arbitration and had failed to weigh the competing considerations — in particular that it was Europcar itself that had first gone to the Italian courts, so that any risk of conflicting results and offence to comity could be laid at its own door.

The Europcar factors. The Court set out the framework district courts still apply when asked to stay enforcement pending set-aside at the seat:

• the general objectives of arbitration — expeditious resolution and the avoidance of protracted, expensive litigation;
• the status of the foreign proceedings and the estimated time to resolution;
• whether the award will receive greater scrutiny abroad under a less deferential standard of review;
• the character of the foreign proceedings — whether brought to enforce (favouring a stay) or to set aside (favouring enforcement); whether begun before the enforcement action (comity); whether begun by the party now seeking to enforce; and whether begun to hinder or delay;
• the balance of hardship, remembering that a court granting a stay may order “suitable security” under Art VI; and
• any other circumstance shifting the balance.

The Court directed that the first two factors should weigh most heavily, because the Convention's primary goal is to facilitate enforcement. A stay, it warned, should not be lightly granted, lest it reward the loser in the arbitration with delay.

Why it matters to the ICSID analysis — by contrast. Everything in this case exists because a New York Convention award has a seat. The award could be set aside in Italy; Art V(1)(e) would then let a US court refuse it; and Art VI let the US court wait to see. That triad — seat, set-aside, adjournment — is precisely what an ICSID award escapes: it is delocalised, has no seat, cannot be set aside by any national court, and Art 54 gives the enforcing court no Art V menu and no Art VI stay. Europcar is therefore the clearest illustration on this site of the machinery an ICSID creditor is spared — and a direct warning to any creditor holding an SCC or UNCITRAL ECT award instead, for whom a friendly EU seat court can annul, and a US court can then refuse or adjourn. Compare Mercuria v Poland, where a Svea-annulled SCC award was refused confirmation in Washington on exactly this basis.

A counter-intuitive corollary: when harder review helps the creditor

There is a paradox buried in the six factors worth drawing out, because it inverts the intuition that a robust EU-law objection is only ever bad news for an award creditor. Factor 3 asks whether the award “will receive greater scrutiny in the foreign proceedings under a less deferential standard of review”, and the Court's reasoning at ¶39 is that this consideration favours a stay: where a foreign court applies a searching standard, it is “better suited to determine the validity of the award”, so the enforcing court should defer to it. Harder review abroad makes a US court more inclined to wait.

Run that logic against the modern intra-EU machinery and it cuts an unexpected way. Consider the emerging European practice of subjecting investment awards to an EU-law-autonomy filter — the clearest statutory example being Ireland's new section 25A of the Arbitration Act 2010 (inserted by the Arbitration (Amendment) Act 2026), under which an award is “not, and never was” enforceable if enforcing it would compromise the constitutional order of the State or the autonomy of the legal order of the European Union, a safeguard drawn from Costello v Government of Ireland [2022] IESC 44. That is, on any view, a less deferential standard of review than the near-automatic enforcement the New York or ICSID Conventions contemplate. On Europcar factor 3, a parallel proceeding conducted under such a standard is a reason to stay US enforcement, not to accelerate it.

The counter-intuitive corollary the proposition identifies is therefore real, but its direction has to be stated with care. A vigorous EU-law or autonomy-based challenge in a Member State forum does not make US enforcement easier; it gives the US court a factor-3 reason to defer. What helps the creditor is the mirror image: where the EU-law objection can only be run in a forum the US court has no reason to defer to — because that forum offers more deferential review, or none at all — factors 3 and 4 tilt back towards immediate enforcement. This is precisely the ICSID creditor's structural advantage. An ICSID award has no seat and no set-aside jurisdiction anywhere; there is no foreign proceeding applying a less-deferential standard for a US court to wait for, so factor 3 has nothing to bite on and factor 4 (was the foreign proceeding brought to set aside, favouring enforcement?) points the creditor's way.

Two cautions before the point is pressed too far. First, Europcar directs that factors 1 and 2 — the pro-enforcement objectives of arbitration, and the time a foreign proceeding will take — should weigh most heavily; factor 3 is a makeweight, not a trump. Second, section 25A is a bespoke gateway for CETA and EU-Chile Investment Court System awards, not a general set-aside power for ECT awards, so it bears on the Spanish and Italian cases by analogy only. But the analytical insight holds: the standard of review a rival forum applies is not a neutral fact. Under the Europcar framework it is a live variable — and the harder a Member State reviews for EU-law compatibility, the stronger the creditor's argument that a US court should not wait for it, and should not treat that Member State's judgment as one worth deferring to.

Citation and court. Costello v The Government of Ireland, Ireland and the Attorney General [2022] IESC 44, Supreme Court of Ireland, judgment delivered 11 November 2022. (The case is sometimes cited “[2022] IESC 4” — including in the Arbitration Act commentary — but the authoritative neutral citation is 44, and the case is now reported at [2025] 1 IR 1.) A full seven-judge Court sat: O’Donnell CJ, MacMenamin, Dunne, Charleton, Baker, Hogan and Power JJ. Every member delivered a judgment, and different majorities formed on different questions — a configuration the Court reserves for issues it regards as constitutionally grave. Hogan J described the appeal as one that “may yet be regarded as among the most important which this Court has been required to hear and determine in its almost 100-year history.”

The challenge. Patrick Costello, a Green Party TD, challenged the Government’s proposed ratification of the EU–Canada Comprehensive Economic and Trade Agreement (CETA) — a “mixed” agreement requiring ratification by the EU and every Member State. His objection focused on Chapter 8 of CETA, which establishes an Investment Court System (ICS): a standing investor–State tribunal, outside the national courts, whose awards a Contracting State must enforce. Butler J had rejected the challenge in the High Court ([2021] IEHC 600); the Supreme Court took a “leapfrog” appeal directly from her.

The result, in two majorities. The Court split on the outcome but coalesced on the cure. By 4–3 (Dunne, Charleton, Baker and Hogan JJ; O’Donnell CJ, MacMenamin and Power JJ dissenting) it held that the Constitution precludes ratification of CETA as Irish law now stands. But by 6–1 (Charleton J dissenting) it held that certain amendments to the Arbitration Act 2010, as detailed in Part XIII of Hogan J’s judgment, would, if enacted, permit ratification without breaching the Constitution. And unanimously the Court held that Ireland is under no EU-law obligation to ratify CETA at all — so ratification fell to be judged by ordinary constitutional criteria rather than treated as compelled.

The constitutional objection — automatic enforceability. The gravamen is not that a CETA tribunal would sit in Ireland or apply Irish law; the majority accepted that ICS operates at the level of international law and does not directly displace the jurisdiction of the Irish courts. The problem is what happens at the enforcement stage. Because a CETA award would be enforceable in the Irish courts — enforced in the same manner as a judgment, with no power of substantive review — an Irish court could be compelled to enforce an award “that ran directly contrary to a finding already made by a court of last resort in Ireland.” Hogan J put the point through a concrete hypothetical: an investor who fails in an Irish court to recover damages for unlawful State action — as occurred in Cromane Seafoods Ltd v Minister for Agriculture [2016] IESC 6, [2017] 1 IR 119 — “might seek and obtain damages before a CETA Tribunal which would then come to be enforced in Ireland,” and the enforcing court “could not … refuse to enforce the award.” The Court characterised enforcement under the 2010 Act as “almost automatic” — refusable only on narrow public-policy or Greendale-type grounds, never on the merits. That collision — a mandatory enforcement obligation overriding the finality of a national court’s own decision — is what the majority found incompatible with Article 34 (the administration of justice) and Article 5 (the democratic nature of the State).

The autonomy dimension. Hogan J also identified a distinctively European concern, drawing on the same line the CJEU developed in Achmea. Although CETA cannot be directly invoked in the domestic legal systems of the Parties (Art 30.6) and a CETA tribunal’s interpretation of domestic law is not binding on the national courts (Art 8.31.2), the tribunal’s power to interpret a State measure as a breach of CETA — and to render an award enforceable regardless of whether the Irish courts consider that measure lawful — is a “direct encroachment on domestic law and a subtraction of the power currently vested in the Irish courts as the sole interpreter of domestic law.” The judgment expressly grappled with the difficulty that the Vattenfall tribunal’s response to Achmea had exposed. Commentators promptly dubbed the decision “Ireland’s Achmea moment.”

The prescription — Part XIII and the birth of s 25A. What makes Costello unusual, and useful, is that the Court did not stop at striking the proposal down: it told the Executive how to cure it. Baker J’s answers to the certified questions capture the logic in miniature — ratification is not necessitated by EU membership (no); it does not impermissibly withdraw disputes from the Irish courts (no); but it is incompatible with the finality of Irish court decisions under Article 34 (yes) and with the democratic nature of the State under Article 5 (yes) — and, crucially, “Would amendment of the Arbitration Acts permit ratification of CETA? Yes.” The route out was to remove automatic enforcement: amend the 2010 Act so that the High Court retains a power to refuse to enforce a CETA award where enforcement would be incompatible with the constitutional order or with the autonomy of the EU legal order. The Oireachtas did exactly that. The Arbitration (Amendment) Act 2026 inserted section 25A, whose subsection (3) provides that such an award is “not, and never was” enforceable if enforcing it would compromise the constitutional order of the State or the autonomy of the legal order of the European Union — the safeguard the Court’s own reasoning had dictated.

Why it matters to the enforcement analysis. Costello is the mirror image of every other case on this site, and that is exactly its value. The Spanish and Italian creditors are searching for a forum that will enforce an award without reviewing it. Costello is a constitutional court explaining, at length and with unusual candour, why a sophisticated legal order finds that very automaticity intolerable, and insisting on a power of refusal as the price of ratification. Read alongside the Europcar note above, it completes the picture: Europcar shows that a “less deferential standard of review” in a rival forum is a reason for a US court to stay enforcement; Costello shows an EU Member State deliberately building such a standard into its law. For an ICSID creditor the lesson is reassurance — the ICSID Convention leaves no room for a s 25A-style filter, which is the whole point of Art 54. For a creditor holding a non-ICSID award enforceable in an EU Member State, it is a warning: the direction of travel in EU constitutional practice is towards more review of investment awards, not less.

The parties and the case. The claimants are Lansdowne Oil & Gas PLC and Lansdowne Celtic Sea Limited, both British. The respondent is Ireland. The instrument invoked is the Energy Charter Treaty; the proceeding is under the ICSID Convention Arbitration Rules. ICSID records the subject of the dispute as an “oil and gas enterprise” in the oil, gas and mining sector. The Acting Secretary-General registered the Request for Arbitration on 8 May 2026, which is the only development yet recorded: the status of the proceeding is Pending. The claimants are represented by Mantle Law (UK) and Diamond McCarthy (Washington, D.C. and Houston); Ireland by the Chief State Solicitor, Dublin.

The underlying dispute. The claim arises from the Barryroe offshore oil and gas field in the Celtic Sea, roughly 50 km off the south coast of Ireland, in which Lansdowne held a minority interest. In May 2023 the Irish Department of the Environment, Climate and Communications refused the lease undertaking required to develop the field. That refusal followed the 2021 announcement of a ban on new oil and gas exploration. Lansdowne characterises the refusal as unfair treatment and an unlawful denial of its development rights, and is pursuing (per its own market disclosures) a claim of a minimum of US$100 million plus interest, funded on a non-recourse basis. Note that the quantum figure comes from the company's regulatory announcements, not the ICSID docket, which does not record an amount claimed.

Why it matters — the extra-EU angle. Both claimants are British, so this is an extra-EU claim. It carries none of the Achmea/Komstroy intra-EU jurisdictional baggage that sits at the centre of the Spanish and Italian cases; the UK is a third State, and an ECT tribunal's jurisdiction over a UK investor's claim against an EU Member State is not touched by the intra-EU objection. If the claim succeeds and Ireland declines to pay, the enforcement analysis on the rest of this site — Art 54 recognition against Art 55 execution immunity — would run against Ireland, in the ordinary way, rather than against Spain.

The sunset clause, in operation. Ireland notified its withdrawal from the ECT on 27 April 2026, effective 28 April 2027. The claim proceeds regardless, because Art 47(3)'s twenty-year sunset clause preserves protection for pre-withdrawal investments. This is the live Irish illustration of the point the Background section makes in the abstract: withdrawal does not switch off exposure; it starts a twenty-year tail. The UK's own withdrawal is likewise no obstacle, for the same reason.

The Costello irony. Ireland has just built, through Costello [2022] IESC 44 and the resulting s 25A, a constitutional filter against the automatic enforcement of investment-treaty awards. It now finds itself a respondent to an ICSID claim — where s 25A's CETA-specific gateway would not apply, and where an adverse award would fall to be enforced under the ordinary Art 54 regime. The State that theorised the power to refuse is now the one that may need it.

What is known. In response to a Freedom of Information request, Ireland disclosed that it has received three further notices of dispute under Article 26 of the Energy Charter Treaty, none of which had previously been public. This was reported by Investment Arbitration Reporter on 1 May 2026 (“Ireland discloses three under-the-radar ECT notices of dispute in response to FOIA request”).

What is not yet known. A notice of dispute under Art 26 is the pre-arbitration step that starts the three-month amicable-settlement period; it is not a registered case. For that reason these three do not appear in the ICSID, ECT Secretariat or UNCTAD databases, all of which begin at registration — which is why an FOI request was needed to surface them at all. The claimants, sectors, measures complained of, and amounts are not established from any primary source available here, and are deliberately left blank rather than guessed at.

Why it is recorded anyway. Taken with Lansdowne, it indicates that Ireland's ECT exposure is broader than the public docket shows — one registered claim plus at least three disputes below the surface. For anyone advising on Irish ECT exposure, that is the material fact, even before the particulars are known.

To complete this entry. The particulars can be obtained from the underlying FOI release (a fresh FOI request to the holding department will produce the same records), or from the IAReporter article for those with access. This space will be filled once the parties are confirmed from a primary source.

The warship — ARA Libertad (Ghana, 2012–13)

The Argentine naval training frigate ARA Libertad was detained at the port of Tema on 2 October 2012 under an ex parte attachment order of the Ghana Superior Court of Judicature (Commercial Division), obtained by NML in satisfaction of its US judgment. The Commercial Court refused Argentina's application to release the vessel on 11 October, reasoning that Argentina had waived sovereign immunity as against the bondholders.

Argentina's response is instructive: it went outside the domestic courts entirely, instituting UNCLOS Annex VII arbitration and seeking provisional measures. On 15 December 2012 the International Tribunal for the Law of the Sea ordered Ghana to release the frigate “forthwith and unconditionally”, holding that measures preventing a warship from discharging its mission affect the immunity it enjoys under general international law, and that such acts are “a source of conflict that may endanger friendly relations among States.” The vessel sailed on 19 December and reached Mar del Plata on 9 January 2013.

The domestic decision is the Supreme Court of Ghana, 20 June 2013, which held the seizure “fundamentally and patently wrong” and upheld the customary-international-law immunity of warships. One wrinkle worth knowing before citing it: commentators who saw the judgment record that the Court appears to have rested on a public policy ground rather than squarely on immunity doctrine. Argentina and Ghana settled the Annex VII arbitration in September 2013.

The receivables — Cour de cassation, 28 March 2013

NML also attached debts owed to Argentina in France by BNP Paribas, Air France and Total Austral. In three simultaneous judgments of 28 March 2013 (1^re civ., Nos. 11-10.450, 10-25.938, 11-13.323) the Cour de cassation annulled all three attachments. The holding is the useful one:

Under customary international law as reflected in the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, a State may waive immunity from execution over property used or destined to be used for public purposes only in an express and special manner, mentioning the assets or the category of assets for which the waiver is given.

The attached sums were tax and social-security receivables — resources “necessarily connected to the exercise by that State of the prerogatives of sovereignty.” A general contractual waiver did not reach them. The Court added, citing the Strasbourg case law, that a limitation on the Art 6 ECHR right of access to a court arising from State immunity is compatible with the Convention where it is consecrated by international law and goes no further than generally recognised rules. These were the first application by the Cour de cassation of the 2004 UN Convention, which France ratified on 28 June 2011. An earlier ruling of 28 September 2011 had likewise held the waiver did not extend to diplomatic assets.

The one that went the creditor's way

Republic of Argentina v NML Capital, Ltd., 573 U.S. 134 (2014), is the counterweight and the reason it recurs in the Spanish litigation. The Supreme Court held that the FSIA does not immunise a sovereign judgment debtor from post-judgment discovery of its extraterritorial assets: execution immunity under § 1609 reaches only property “in the United States”, and the prospect that a general request may turn up immune property is no bar. That holding at 144–45 is precisely what Judge Howell relied on in Blasket to reject Spain's argument that anything touching potentially immune assets is categorically undiscoverable.