The Court of Appeal dismissed an appeal by Blasket Renewable Investments LLC on 2 November, upholding a Commercial Court ruling that there was no relevant right of assignment of a €29.3m ICSID award against the Kingdom of Spain.
Lord Justice Foxton gave the leading judgment in [2026] EWCA Civ 1392, handed down remotely at 10.30am. Lord Justice Lewison and Lord Justice Males sat with him.
The practical result is that Blasket remains unsubstituted for the original investors in Spain’s pending application to set aside the registration of the award. The Court said at [3] that the judge was right on both grounds and the appeal should be dismissed “substantially for the reasons the Judge gave”, though its reasons differ in some respects because the arguments on appeal involved refinements to those made below.
The appeal concerned whether rights arising from an award under the ICSID Convention can be assigned.
Five issues were identified at [2], including whether the original award creditor can assign the benefit of the award, whether Article 15 of the Energy Charter Treaty precludes assignment, and whether Article 54(2) of the ICSID Convention allows anyone other than the original award creditor to seek recognition or enforcement.
His Honour Judge Pelling KC, reported at [2025] EWHC 2874 (Comm), had held that on the proper construction of Article 54(2) only a party to the arbitration could seek registration and enforcement ([13]). He also held that s.2 of the Arbitration (International Investment Disputes) Act 1966 created no new right of assignment.
On the first question, the Court addressed whether international law gives a beneficiary of treaty rights a general power to assign them. It accepted at [59] that “on the current state of customary international law, treaty rights as between states are not assignable without the consent of the obligor”.
It added at [60] that an investor’s rights against a host state are also international law rights deriving from a treaty, and said it saw real force in Spain’s submission on the position set out by Lord McNair and the International Law Commission.
It also noted that the English courts’ approach to assignment rests on s.136 of the Law of Property Act 1925 and related principles ([47]).
Spain relied on academic commentary, including Dr Martha’s statement that he was not aware of any decision of an international court or tribunal on the assignability of award or judgment benefits. The Court said at [62] that it accepted that this view “supports Spain’s contention”.
The Investors, OperaFund Eco-Invest Sicav Plc and Schwab Holding AG, began ECT arbitration against Spain on 31 July 2015. They obtained the award on 6 September 2019, rectified and finalised on 28 October 2019. They applied without notice to register it under the 1966 Act on 9 August 2021, and Cockerill J made the registration order on 14 September 2021.
Spain applied on 6 January 2023 to set that order aside, relying on s.1(1) of the State Immunity Act 1978 among other grounds. On 31 January 2024 the Investors assigned to Blasket “all rights, interests and benefits” under the award, under a Swiss-law agreement. Blasket applied on 25 July 2024 to be substituted under CPR 19.2(4), which required it to show a valid assignment on the balance of probabilities ([11]).
The set-aside challenge on state immunity was adjourned pending Infrastructure Services Luxembourg SARL v Kingdom of Spain. The Supreme Court dismissed Spain’s appeal in that case on 4 March ([2026] UKSC 9).
The judgment records 51 known arbitrations against Spain under the ECT over changes to renewables tariffs. Spain ratified the treaty in 1997 and withdrew with effect from 17 April 2025 ([18]). The appeal was heard on 6 and 7 October.
Laurence Rabinowitz KC, Christopher Harris KC (of Gibson Dunn LLP) and Mark Wassouf, instructed by Debevoise & Plimpton LLP, appeared for Blasket. Sean Aughey, Cameron Miles and Raphaël Tulkens, instructed by Simmons & Simmons LLP, appeared for Spain. The case is on appeal from the Commercial Court, claim CL-2021-000481.