Court of Appeal Holds That ICSID Awards Cannot Be Assigned Without the Debtor State’s Consent

The Court of Appeal (Lewison, Males and Foxton LJJ) has handed down judgment in OperaFund Eco-Invest Sicav Plc & Ors v Kingdom of Spain [2026] EWCA Civ 1392. In that judgment, the Court dismissed an appeal by Blasket Renewable Investments LLC (‘Blasket’) from a judgment by HHJ Pelling KC in the Commercial Court, holding that an ICSID award cannot be assigned by an investor award creditor without the state award debtor’s consent, and that absent such consent, an assignee of an ICSID award cannot seek its recognition or enforcement in England and Wales.

The dispute is one of several arbitrations brought against the Kingdom of Spain (‘Spain’) under the Energy Charter Treaty and ICSID Convention following amendments made between 2010 and 2014 to its incentive regime for renewable energy. In 2019, Maltese and Swiss investors obtained an ICSID award (‘Award’) of €29.3 million, which in 2021 was registered in the High Court under s 1(2) of the Arbitration (International Investment Disputes) Act 1966 (‘1966 Act’).

In 2024, the investors purported to assign all their rights under the Award to Blasket, a Delaware-based litigation funder. Blasket applied to be substituted for the investors in proceedings to enforce the Award in England and Wales. HHJ Pelling KC dismissed that application and gave Blasket leave to appeal.

Foxton LJ gave the lead judgment of the Court of Appeal, with Lewison and Males LJJ agreeing. The principal findings were as follows.

• First, the Court held that, under customary international law, treaty rights are not assignable without the consent of the obligor state, a position that the Court held was equally applicable to individuals granted international law rights under the ICSID Convention and an ICSID award, which exists solely on the international law plane. The Court rejected an argument, drawn from the Lotus principle, that the lack of a specific prohibition on ICSID award assignment in international law meant that the awards were assignable.
• Second, the Court held that, properly constructed, Article 54(2) of the ICSID Convention permitted only one of the original parties to an ICSID award to seek its recognition or enforcement, and not an assignee.
• Third, the Court held that the ICSID Convention did not devolve questions concerning the assignability of ICSID awards to the domestic law of its Contracting States.
• Fourth, the Court held that registration of an ICSID award under s 2(1) of the 1966 Act did not create new substantive rights adhering in the award creditor as a matter of English law that were capable of assignment even if the ICSID award itself was not.

The judgment departs from first-instance decisions in the United States and Australia and an interim Dutch decision.

Three members of 3VB appeared in the appeal. Cameron Miles (who appeared earlier in the Commercial Court) and Raphaël Tulkens acted for Spain, with Sean Aughey of Essex Court Chambers, instructed by Simmons & Simmons LLP. Mark Wassouf (who also appeared in the Commercial Court) acted for Blasket, with Laurence Rabinowitz KC of One Essex Court and Christopher Harris KC of Gibson, Dunn & Crutcher LLP, instructed by Debevoise & Plimpton LLP. A copy of the judgment may be found here.