Tariq Baloch and Cameron Miles have successfully resisted an application by an award creditor requiring the Kingdom of Spain to provide security of over 120 million as a condition to Spain being permitted to pursue its appeal to the Court of Appeal from the decision of Fraser J in Infrastructure Services SÀRL & Anor v Kingdom of Spain  EWHC 1226 (Comm).
In a decision handed down on 1 February 2024, a powerfully-constituted Court of Appeal (the Master of the Rolls, the Chancellor and Snowdon LJ) held that the award creditor was unable to show “a compelling reason why Spain, as a sovereign state and a member of the European Union, should be required to pay the Award into court here in England and Wales, as a condition of pursuing its appeal”. As well as discussing the threshold for imposing conditions to appeals by sovereigns in the English courts, the case also addresses procedural questions about conditions being attached to leave to appeal including whether identification of a condition in the respondents’ brief statement (PD52C, para 19) responding to an application for permission to appeal is a formal application for conditions, and its relationship to CPR 52.18(1)(c). The Court of Appeal floated the idea that there was no temporal limitation on an application for conditions under CPR 52.18(1)(c) and suggested that the inhibition against repeat applications for conditions made at a “hearing” (CPR 52.18(3)) may benefit from a review by the Civil Procedure Rules Committee on the basis that “the terms of that inhibition are left over from the days of oral renewals”.
The decision also forms part of the wider debate, which is the subject of contradictory approaches in the Commercial Court, as to whether sovereign award debtors are immune from proceedings in England for the registration of awards under the terms of the Arbitration (International Investment Disputes) Act 1966. That question is due to be resolved by the Court of Appeal in June 2024, with Tariq and Cameron again acting for the Kingdom of Spain.
Tariq and Cameron are instructed by Simmons & Simmons: in London, Stuart Dutson, Jonathan Schuman, Craig Gilchrist, Eliza Jones and Charles Roberts; in Madrid, Raquel Ballesteros.
A copy of the Court of Appeal’s judgment can be found here.