[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]
In Gable Insurance AG v Dewsall & Ors [2025] EWHC 2280 (Ch) there was succinct pondering whether a claim based on knowing receipt falls within A4 or A10 of Rome II.
Parties do not seem to have pushed the issue and the debate it seems is quickly settled as being covered by English law. In coming to this conclusion Vos DJ does cut a few corners. Firstly despite it not having been intense, there does seem to have been debate and no agreement per A14 Rome II.
Further, the judge and parties discuss the issue of qualification of the claim and whether this should be done using lex fori or (putative) lex causae ([405] in the case at issue, Liechtenstein law would seem to qualify the underlying breach of duty by a director in a similar way to a contractual claim). Under Rome II of course the answer to that question is: neither. Qualification in areas covered by harmonising instruments takes place under an autonomous, EU law concept. Post Brexit of course a relevant question is whether this general principle of EU (PrivInt) law continue to apply when UK Courts apply the ‘assimilated’ Rome I and II instruments. In the case at issue seemingly the answer is ‘not at all’, for with reference to Kuwait Oil Tanker Co SAK v Al Bader (No3) [2000] 2 All ER (Comm) 271) the conclusion is taken that a relationship which exists under foreign law should be examined to determine whether the duties which are owed would be characterised as fiduciary duties under English law, and that only if they are, a claim in knowing receipt can be brought in England.
[403] the judge holds that the application of A4 and 10 is likely to lead to the same result of English law being lex causae, and [404] that in any event, the circumstances are manifestly more closely connected with England than any other country, hence triggering the escape clause of A4(3) or (10)4. That as I have said before, is a topsy turvy way to go about a Rome II analysis. The ‘proper law of the tort’ exercise is only a narrow escape valve in Rome II (and I): not a general principle.
Geert.
Claim in knowing receipt. Most succinct ponder as to whether covered by A4 or 10 Rome II.Gable Insurance AG v Dewsall & Ors [2025] EWHC 2280 (Ch)www.bailii.org/ew/cases/EWH…
— Geert Van Calster (@gavclaw.bsky.social) 2025-09-09T06:34:10.507Z
Now I know I have a blog queue at times but this one is unforgivably late. See here the report by Kathleen Garnett and myself on essential use in key international, US (federal) and EU law.
The concept of essential and non-essential use has been gaining traction in the broader context for chemicals policy. The authors of this report have analysed the concepts of “essential” and “non-essential” use under selected parts of International law, EU law, and US federal law with particular focus given to derogations/exemptions to a general prohibition/restriction which are (i) granted based on essentiality (or equivalent concepts) or (ii) are not granted because of non-essentiality (or equivalent concepts).
In July 2021 we completed a thorough review of essential uses approaches in 9 legal sources: The Montreal Protocol; the US Clean Air Act 1977; the EU Regulation 517/2014 on fluorinated greenhouse gases; the Stockholm Convention on persistent organic pollutants; the EU POPs Regulation 2019/1021; the EU Regulation 528/2012 on biocidal products; the EU Regulation 1107/2009 on plant protection products; the EU Directive 2011/65 on hazardous substances in electrical and electronic equipment; and the EU Regulation 1333/2008 on food additives.
The study concludes that deployment of an essential use justification in this complex area of the law is rare. The most common reasons for justifying a derogation and /or exemption, are:
The Montreal Protocol appears to be an outlier in the regulation of hazardous substances with an essential use approach, and our analysis of the 1978 US forerunner to that approach is a most relevant element, we submit, in the current discussions on essential uses.
Kathleen, Geert.
[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]
Campeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm) is worth a flag for the discussion of CPR r. 6.33(2B) which allows a claimant not to have to seek permission to serve out of the jurisdiction in the context of choice of court under the 2005 Hague Convention. It reads
‘(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form—
(a) the court has power to determine that claim under the 2005 Hague Convention and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention;
(b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or
(c) the claim is in respect of a contract falling within sub-paragraph (b).’
OE Waste’s argument is that Mr Campeau was not a party to the SPA which contains the clause, and there is no other basis, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 (‘the 1999 Act’) or as a matter of construction of the SPA on which Mr Campeau is to be treated as a party to, or permitted to rely on, the exclusive jurisdiction clause in the SPA. Moreover, there is no alternative basis in CPR 6.33(2B)(b) or (c) that would entitle Mr Campeau to serve the Claim Form out of the jurisdiction without permission.
Butcher J signals [28] that Mr Campeau ought to have submitted a request for permission to serve out as a subsidiary means, for under CPR PD 6B paragraph 3.1(6)(c), contract governed by English law, permission could have been granted on that basis. As it is, he decides on the basis of contractual construction that there is a good arguable case that the contractual scope of the choice of court clause did extend to a dispute over the extent of a third party’s rights under the relevant clause; and that the parties were agreed between themselves that such a dispute should be subject to the jurisdiction of the English courts.
The judgment is not particularly exciting however I decided to post anyway, seeing as it is a good example of contractual construction in the context of choice of court..
Geert.
Interesting judgment discussing choice of court (Hague 2005) and impact on claims by third parties; privity, contractual constructionCampeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm)www.bailii.org/ew/cases/EWH…
— Geert Van Calster (@gavclaw.bsky.social) 2025-09-18T07:12:34.343Z
[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]
In Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028 the Federal Court of Australia has confirmed the enforceability of 4 ETC awards against Spain viz its long-suffering renewable energy support schemes. The judgment has already been leaned upon in support in proceedings before the US Supreme Court and approaches the issues with similar lucidity as Fraser J in Infrastructure Services.
Current post is by Claudia Wortmann, for which many thanks!! Geert.
*****
Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028
In a single-judge decision in the Federal Court of Australia delivered on 29 August, Justice Stewart held four ICSID awards issued against Spain under the Energy Charter Treaty to be recognisable and enforceable. Each of the awards in 9REN, NextEra, RREEF and Watkins, brought by 9REN and NextEra, and by the assignee to the RREEF and Watkins matters were found to be enforceable pursuant to section 35(4) of the International Arbitration Act 1974 (Cth), federal legislation in Australia which provides for the enforcement of foreign arbitral awards.
Spain objected to the proceedings on a number of grounds, being:
The Court found that Spain did in fact waive its rights to immunity, the Court had jurisdiction to recognise and enforce the awards pursuant to s 35(4) of the IAA, and dismissed the EC’s application to intervene.
Non-waiver of immunity
As may be recalled, the High Court of Australia in Spain HCA had already found ([150] citing Spain HCA at [29]) that Spain had implicitly waived its foreign State immunity rights. The closed nature of the ICSID system was confirmed in Spain HCA and in Micula v Romania [2020] 1 WLR 1033 at [68]-[69] by the UK domestic courts. There was no reason to find that the award was not binding, as the ICSID system was a closed system, and that apparent conflicts with EU law were not relevant for the enforcement proceedings, as the awards were [174] ‘genuine, certified and authenticated awards’.
Spain’s argument, that ‘waiver of immunity in enforcement proceedings is limited to proceedings to enforce awards that are valid and binding’, had not been raised specifically in Spain HCA, however, the Court found [180] that
On the premise that the awards are binding on Spain, the proceedings are not outside the territory of what the parties accept was decided by the High Court. It follows that Spain’s contention of non-waiver of immunity to jurisdiction must be rejected.
Primacy of EU law
Spain argued that where there is a conflict between Spain’s obligations owed to other EU Member States under the EU foundational treaties, the primacy of EU law must prevail, and therefore, under public international law Spain owed no obligation to comply with the ICSID awards, and Australia owed no obligation to recognise or enforce them. Spain relied on the CJEU’s findings in Achmea and Komstroy in arguing that EU law prevents the application of the ECT between Member States, and it also argued that the public international law obligations would constitute illegal State aid between EU Member States. The Court found [118] that:
European law has undeniable domestic effect including through lower-level instruments of European law sourced in the authority of the foundational treaties… It suffices to say that while international treaties and subordinate EU instruments could be regarded as a form of international law, for the purposes of proof it would not be a form of international law incorporated into or picked up by Australian law in the sense contemplated in the authorities.
On this point, the Court [210] accepted expert evidence supplied by Professor Eeckhout on behalf of the Applicants, in the event of a conflict between international law and EU law,
the Member States must take the appropriate steps under international law to remove the conflicting international law obligation. In the meantime the conflicting clause remains valid and operative’.
Therefore, international law is applicable until withdrawal of the relevant treaty takes effect, which includes the ECT and the ICSID Convention, and [213]
it is no answer for Spain to say that it has some or other defence available to it under EU law, for it is not Australia which is under any supervening requirement of essentially foreign domestic public law to not comply
Spain was allowed to reopen the case for the purpose of submitting the Agreement on the Interpretation and Application of the Energy Charter Treaty between the European Union, the European Atomic Energy Community and their Member States (COM(2024) 257 final) (26 June 2024) (‘EU Inter Se Agreement’); and Declaration on the Legal Consequences of the Judgment of the Court of Justice in Komstroy and Common Understanding on the Non-Applicability of Article 26 of the Energy Charter Treaty as a Basis for Intra-EU Arbitration Proceedings [2024] OJ L 2024/2121 (26 June 2024) (‘EU Inter Se Declaration’).
The Court found that neither document materially added to Spain’s case, as
a) both came into existence long after the matters in dispute arose;
b) that removal of intra-EU disputes would be subject to future amendment of the ECT in accordance with the VCLT (in line with a separate declaration from Hungary, both an EU and ECT member);
c) neither the Agreement nor Declaration sought to amend the ICSID Convention; and
d) the substance of the Agreement and Declaration were not relevant to the enforcement proceedings as they both went to the interpretation and application of the ECT which is a question for ICSID tribunals, and not the enforcing Court.
The Court acknowledged that although there was a conflict between international law and EU law, it had no bearing on Spain’s public international law obligations or that it meant the ICSID awards were not binding.
Modification argument
Spain argued that the Treaty of Lisbon modified Art 43 ICSID Convention between EU Member States, meaning that tribunals have no jurisdiction over intra-EU disputes, and the Court lacked the power to enforce them, relying on customary international law to support its claim, because the ICSID Convention preceded the VCLT so the VCLT rules on successive treaties would not apply.
Spain argued that there are three requirements for custom to modify a treaty:
a) modification is not expressly prohibited by the treaty;
b) that modification does not affect the enjoyment of, and rights and obligations under the treaty by other parties;
c) the modification does not relate to a derogation provision which is incompatible with the object and purpose of the treaty.
The Court held:
Assignment
The Court made quick work dismissing Spain’s objection that the assignment of rights from RREEF and Watkins to Blasket was invalid. The Applicant argued successfully that the duty arose under s 35(4) IAA as Australia’s dualist system requires domestic enshrinement of international law obligations to make them enforceable. Under domestic law, in Australia the rights of enforcement for an arbitral award are also capable of being assigned. So in either case, Spain’s argued failed. Justice Stewart was not convinced by Spain’s argument that allowing enforcement by an assignee would allow for double recovery.
EU status of Jersey and Constitutional argument
This argument relating to only the RREEF enforcement proceedings, as an alternative argument by the Applicant in respect of the EU nationality of the investors. Blasket argued that, in the event that Spain’s intra-EU objections were upheld, that the investor in RREEF, being domiciled in the Bailiwick of Jersey, a British Crown Dependency and one of the Channel Islands, should not be prevented from enforcing that award. Justice Stewart agreed, finding the investor in RREEF was not a national of an EU Member State.
Constitutional argument
The Court held that although Art 54 ICSID Convention as implemented by s 35(4) IAA, requires the Court to recognise and enforce any ICSID award as binding within Australia as judgment of that court, this does not ‘impermissibly vest constitutional powers in either the ICSID tribunal or the Secretary-General, nor does it substantially impair the institutional integrity of the Court as a constitutional court by requiring it to find a waiver of foreign state immunity or by recognising or enforcing an award.
EC application to intervene
The European Commission sought leave to intervene in the proceedings, supported by Spain, which was denied by the Court. The EC application sought to make two submissions: a) Spain’s submissions are an accurate description of EU law, and EU law prevents any payment under the awards as illegal State aid; and b) any payment made by Spain under the ECT awards would being subject to significant ongoing fines until such payment were recovered. The Court accepted that Spain’s submission on EU law may indeed be accurate, but as the ‘crux’ of the proceedings were on (at [361]) ’ the effect of EU law on public international law binding Australia’, such accuracy had no impact on the Court’s findings. On the second point Stewart J stated at [362]:
while the questions raised are no doubt interesting, as explained above, they are irrelevant on an application for recognition and enforcement of an arbitral award in circumstances where I have concluded, notwithstanding the identified consequences extant in and arising from EU public law, the Court is bound to give effect to the award in accordance with public international law and Australian domestic law.
In sum, Stewart J dismissed Spain’s arguments from the outset, finding that most of them were similar enough to those put forward in Spain HCA to warrant the application of precedence. Even so, His Honour considered and dismissed each of Spain’s alternative arguments in succession, reaffirming that ICSID awards can and will be enforced in Australia, and that the influence of EU law principles remains minimal in this context.
Claudia.
Élection des juges appelés à exercer les fonctions d’avocat général au sein du Tribunal pour le traitement des demandes de décisions préjudicielles
Élection des présidents de chambre du Tribunal de l’Union européenne
Theme by Danetsoft and Danang Probo Sayekti inspired by Maksimer