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of treaties, guided by the terms, object and purpose of the ICSID Convention itself. The latest edition of Professor Schreuer's commentary does not depart from this position: Schreuer 3rd ed, Vol II at 1448 [15] and 1462 [57].
263 Finally, the Advocate General raised issue with the UKSC “confining its assessment to a single procedural question arising out of the dispute” (ie whether the UK was required to enforce the award) and how it thereby “lost sight of the basic legal relationship which gave rise to the dispute”, being Romania as the award debtor State and Sweden as the home State of the investors (at [150]-[153]). While the Advocate General stated that the UKSC left the Romania-Sweden BIT out of the equation, this ignores that the question before the UKSC arose, in fact, not under the Romania-Sweden bilateral relationship, but under the ICSID Convention regarding the UK's obligations to other ICSID Contracting States. While it may be true, as the Advocate General states, that it was “the BIT that laid down the substantive obligations that Romania had undertaken towards Sweden” (emphasis in original), the dispute in the UKSC concerned the UK's obligations under the ICSID Convention. It is hard to see how the “basic legal relationship” to that dispute was in the BIT.
264 In the circumstances, I am not persuaded by the CJEU or the Advocate General on this point, noting that it is not a point of EU law or EU treaty interpretation and is therefore not a point on which the CJEU would be regarded as any more authoritative than the UKSC.
265 Spain also relies on NextEra Energy Global Holdings BV v Kingdom of Spain 112 F4th 1088 (DC Cir 2024) as providing further support for the proposition that the obligation to abide by and comply with the terms of the award in Art 53 ICSID Convention is not an erga omnes partes obligation but is instead one owed bilaterally such that it is capable of being modified inter se in a way that is not incompatible with the effective execution of the object and purpose of the ICSID Convention as a whole. I do not find the case helpful to support the proposition for which it is cited. The judgment deals with two primary questions (at 1099ff). The first is whether the Foreign States Immunities Act 28 USC § 1602 et seq (FSIA) gives the District Courts jurisdiction to enforce (or decline to enforce) the arbitration awards at issue in that case against Spain – they are the same awards as in the present NextEra and 9REN proceedings. The Court held that it did not have to consider whether Spain had waived foreign State immunity under the waiver exception in the FSIA because the exception for immunity provided in respect of arbitral awards applied to give the District Courts jurisdiction (at 1100). Notably, in doing so the Court overturned the decision in Blasket
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Renewable Investments LLC v Kingdom of Spain 665 FSupp 3d 1 (DDC 2023), where Leon J held Spain to be immune on the basis that “Spain’s standing offer to arbitrate was void” meaning there was no valid arbitration agreement. The applicants note the primary decision is one of the few non-EU domestic court decisions to have accepted the intra-EU objection for the purposes of jurisdiction.
266 The second question is whether, assuming it had jurisdiction, the District Court abused its discretion by enjoining Spain from seeking anti-suit relief under foreign law in foreign courts. The Court (by majority per Pillard and Rogers JJ, Pan J dissenting on this point) found error in the exercise of the District Court’s discretion in providing the anti-anti-suit relief. That was because, first, it had not considered the injunction was to run against a foreign sovereign (at 1107 [23]-[24]) and, second, failed to identify domestic interests strong enough to warrant the anti-suit injunctions (at 1109 [27]). In the context of discussing the latter point, the Court reasoned that the US “has no direct interest in the underlying dispute between the Dutch and Luxembourgish companies and Spain” (at 1109 [27]) on which Spain now particularly relies. There is nothing in the reasoning of the Court that addresses the nature of the multilateral obligations embodied in the ICSID Convention. Rather, the Court weighed the US’s obligation to uphold the ICSID Convention and its strong interest in doing so against the interests in allowing the foreign litigation to proceed, and found in favour of the latter (at 1110).
267 However, before the Court, and particularly referenced with approval in the dissenting judgment of Pan J, was an amicus brief on behalf of 12 international scholars including Professor Schreuer. The international scholars comprise some of the leading global experts in the fields of public international law, investor-State disputes and the ICSID Convention. Their experience and expertise are documented in the brief. They state that the obligations under Art 54 ICSID Convention are “owed to every other Contracting State” and that non-enforcement of the awards against Spain “would place the United States in breach of its Article 54 obligations and seriously undermine the operation and legitimacy of the investor-state dispute settlement framework established by the Convention” (at 8). They explain that (at 21):
Mandatory enforcement of all awards is part of the Convention’s fundamental design, as recognized from ICSID’s inception. Because all 158 ICSID Contracting States share an interest in the operation of the system and even where the enforcing state does not have an interest in each particular dispute settled through that system, it follows that each Contracting State’s obligation to enforce all ICSID awards is owed
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erga omnes partes, that is, to all other ICSID Contracting States.
(Citations omitted.)
268 The international scholars further explain that in the event that an ICSID award debtor does not comply with the award, the award creditor can then turn to any other member State of the ICSID Convention for enforcement. “The ICSID enforcement framework thus depends on each Contracting State being ‘obliged to directly enforce every arbitral award, regardless against which state’” (at 22). That reasoning is persuasive.
269 For those reasons, the relevant obligations in the ICSID Convention are erga omnes partes so the obstacle to modification in Art 41(1)(b)(i) VCLT is not overcome.
270 Essentially for the same reasons, the requirement in Art 41(1)(b)(ii) that the modification does not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole is not satisfied.
271 For those reasons, Spain’s principal modification argument must fail.
272 Spain’s alternative argument relies on Art 30 VCLT which provides as follows:
Application of successive treaties relating to the same subject matter
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273 Article 30 employs the concepts of the “earlier treaty” and the “later treaty”. That raises a point of some nicety as to what date in relation to a treaty is to be employed when working out which is the earlier and which is the later. Is it the date of signature, the date of the treaty being opened for signature, the date of accession or ratification, or the date that it entered into force? These matters are considered in Vierdag E W, “The Time of the ‘Conclusion’ of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions” (1988) 59(1) British Yearbook of International Law 75. The Deputy Chairman of the UK delegation to the Vienna Conference on the Law of Treaties, Sir Ian Sinclair, took the view that “the relevant date is that of the adoption of the text and not that of its entry into force”: Sinclair I, The Vienna Convention on the Law of Treaties (2nd ed, Manchester University Press, 1984) at 98, referred to with approval by Vierdag at 95. It would seem that the appropriate date in this context is the date of signature, or the opening of the treaty for signature, which are usually very close together. I will use the date of signature, although in these proceedings it does not appear to matter which of those dates is used.
274 The first difficulty for Spain on its alternative argument is that, like its principal argument, any modification applies only “as between States Parties to both treaties” (Art 30(4)(a) VCLT). For the reasons already given, the obligations in Arts 53 and 54 ICSID Convention are not merely bilateral obligations between the investor’s State and the host State. Rather, the provisions implicate international obligations of all States parties, including Australia. But even if the obligations are bilateral, the EU foundational treaties cannot modify the obligations as between Australia and Member States of the EU, including, relevantly, Spain and the investor’s home States, because Australia is not a party to any of the EU treaties. That is the result of Art 30(4)(b) VCLT.
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275 The second difficulty is that the Treaty of Lisbon, or TFEU, is not the relevant treaty for the application of the lex posterior rule in Art 30 VCLT. That is because the principles that Spain relies on for such modification as expressed in Achmea and Komstroy are derived from pre-existing EU constitutional norms found in the Treaty of Rome which predates the ICSID Convention – the Treaty of Rome was concluded in 1957 and the ICSID Convention in 1965.
276 Relevantly, as discussed above, the principle of the preservation of the autonomy and of the particular nature of the law established by the EU foundational treaties, and thus the prohibition on the application of EU law outside the judicial system of the EU, relies on Art 267 TFEU and Art 344 TFEU. Article 267 TFEU was previously Art 234 TEC, and before that it was Art 177 TEEC (Treaty of Rome). Article 344 TFEU was previously Art 292 TEC, and before that it was Art 219 TEEC. I do not accept that the Treaty of Lisbon created or relevantly reaffirmed the principles in question. The principles of the autonomy of EU law and of mutual trust were part of EU law since the inception of the EEC in 1957 in the TEEC and reaffirmed in 1992 through the TEC as amended by the Maastricht Treaty. They are not dependent on the 2007 amendments. They were inherent in the EU legal system from 1957, the relevant articles merely being moved around and renumbered in the TEC and then the TFEU. I accept the opinions of Professor Eeckhout and Professor Sarooshi in that respect.
277 Spain signed the Treaty concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community to join the EU as a Member State on 12 June 1985. However, Spain signed the ICSID Convention on 21 March 1994. Thus, as concerns Spain, the ICSID Convention is the later Convention.
278 The same is true of the relevant investor States, namely the Netherlands and Luxembourg – both were original members of what was then the EEC in 1957. The Netherlands signed the ICSID Convention on 25 May 1966, while Luxembourg signed on 28 September 1965. To the extent that the position of the Bailiwick of Jersey is relevant on the basis that for these purposes it became subject to the EU treaties and the ICSID Convention along with the UK (a matter to which I will come), the UK signed the ICSID Convention on 26 May 1965, whereas it did not sign the Treaty concerning the accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland to the
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European Economic Community and to the European Atomic Energy Community (UK Accession Treaty) to join the EEC until 22 January 1972.
279 The position is thus that as between Spain, the Netherlands and Luxembourg, the ICSID Convention is the later treaty with the result that it cannot have been modified under Art 30 VCLT by principles of EU constitutional law. Australia is not affected by the EU treaties, so as between Spain, Luxembourg, the Netherlands, the UK and Australia, the ICSID Convention must be treated as unmodified. For the UK, in spite of the EU foundational treaties being later in time to the ICSID Convention, post-Brexit it is no longer a party to the former such that there is no longer a succession of treaties for the purposes of Art 30.
280 But in any event, the position of the UK is only relevant because one of the investors, RREEF Infrastructure (GP) Ltd, was incorporated in the Bailiwick of Jersey and Spain contends that Jersey is to be regarded as part of the UK for these purposes. For reasons I will come to, I have not been persuaded that that contention is correct.
281 For the reasons already given in relation to Spain’s contentions about “power” (see above at ([215]-[221]), the EU inter se agreement and declaration do not alter the analysis.
282 The third question is whether the EU foundational treaties and the ICSID Convention are treaties “relating to the same subject matter”. The difficulty with the test propounded by Spain, namely if simultaneous application of both would lead to incompatible results, is that that requirement then plays no role at all; the lex posterior principle would simply be applied with the later treaty taking preference. However, it is also possible to err the other way by employing arbitrary labels to treaty subject matter and thereby avoid real conflicts, eg characterising one treaty as dealing with environmental conservation and another with economic development.
283 The ILC Fragmentation Report (at 254) explains that “the test of whether two treaties that deal with the ‘same subject matter’ is resolved by assessing whether fulfilment of an obligation under one treaty affects the fulfilment of obligations under another”. That is a similar test to that propounded by Orakhelashvili as relied on by Spain and cited above at [229].
284 I accept that the test for the same subject matter is one of incompatible obligations. However, in this case it is hard to identify just what the incompatible obligations are. The EU
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foundational treaties “are constituent instruments of an institution which is an international organisation but also a union of States with a customs union and much more”: Adria Group BV v Republic of Croatia (Decision on Intra-EU Jurisdictional Objection) (ICSID Arbitral Tribunal, Case No ARB/20/6, 31 October 2023) at [175]. The CJEU in Komstroy held that the obligations that EU Member States have pursuant to intra-EU arbitration agreements are inconsistent with principles of the EU system derived from the EU foundational treaties. That is to say, the obligation of EU Member States under Arts 267 and 344 TFEU to not submit a dispute concerning EU law to a forum outside the dispute resolution mechanisms of the EU (ie courts or tribunals that do not have the CJEU at their apex) is inconsistent with the obligation in Art 26 ECT to submit those disputes to extra-EU arbitral process. However, there are no particular obligations on EU Member States under the EU treaties that the CJEU has identified as being in conflict with the obligations of those States under the ICSID Convention, which on its own does not require parties to refer disputes to ICSID arbitration: see Art 25(1). The incompatibility is therefore not at the level of obligations per se between the EU treaties and the ICSID convention. For those reasons, I do not consider that the requirement of “the same subject matter” in Art 30 is met.
285 However, if the inconsistency identified with the ECT could be regarded as extending to obligations in the ICSID Convention, a proposition which I am not persuaded on, the other elements of Art 30 VCLT are still not met, for the reasons explained above.
286 For those reasons, Spain’s case in reliance on Art 30 VCLT fails.
287 It will be recalled that in the RREEF proceeding, the applicant is now (since 26 June 2023 – see at [35] above) Blasket Renewable Investments LLC, a limited liability company incorporated under the Delaware Limited Liability Company Act 6 Del Code Ann § 18-101 et seq. The RREEF parties, on the “Assignment Effective Date” (27 October 2022), “on a joint and several basis, irrevocably and unconditionally assign[ed] to [Blasket] with full title guarantee the legal and beneficial title to the Assigned Rights, which assignment [Blasket] accept[ed]”. “Assigned Rights [means] all of the rights, interests and benefits of the Assignors under or in respect of the Award.”
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288 By cl 18.1 of the deed of assignment, the deed “and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law”.
289 By letter dated 18 January 2023, the RREEF parties and Blasket notified Spain of the assignment.
290 Also, in the Watkins proceeding, the applicant is now (since 3 April 2024 – see at [62] above) Blasket. On 21 December 2023, the Watkins parties assigned “the legal and beneficial title to the Assigned Rights” to Blasket. “[T]he term ‘Assigned Rights’ [means] all of the rights, interests and benefits of the Assignors under or in respect of the Award.” The governing law of the deed of assignment is English law in identical terms to the RREEF-Blasket deed above. Spain was given notice of the assignment by letter dated 26 March 2024.
291 As mentioned above, while I have already made orders joining Blasket and substituting Blasket for the RREEF and Watkins parties in each proceeding, those orders were made on the basis that they would not prevent Spain from disputing the validity or efficacy of the purported assignments at trial, which it now does.
292 Since the circumstances, and text, of both assignments are relevantly the same, I will deal with this issue with reference to the RREEF proceeding – whatever is said and found in relation to it holds also for the Watkins proceeding.
293 At a high level, Spain’s submission is that the IAA confers no power to make the orders sought in the RREEF proceeding because the award sought to be enforced do not impose on Spain any obligation in favour of Blasket.
294 This contention is supported by a series of propositions which can be summarised as follows:
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295 Alternatively, Spain contends that it has not waived its immunity from the adjudicative jurisdiction of this Court in proceedings brought by a non-party to an award, noting the “high level of clarity and necessity” required for waiver (Spain HCA at [28]).
296 Blasket relies in the first instance on s 33(1) IAA as creating a right in domestic law in favour of the RREEF parties, which right is capable of assignment. That right is said to arise independently under s 32 IAA which gives “the force of law in Australia” to Art 53(1) ICSID Convention. Also, under s 35(4) IAA, an award may be enforced “as if the award were a judgment or order of [the Court]”.
297 Blasket submits that although the ICSID Convention is an international instrument, under Australia’s dualist approach to international conventions it gives rise to rights and obligations in domestic law only through being implemented by domestic statute. It argues that Spain’s obligation to pay under Art 53 ICSID Convention is a debt governed by Australian law under ss 32 and 33 IAA. Thus, the rights that the RREEF parties had against Spain to recover such payment, and Spain’s corresponding obligation, are rights available in domestic law. Blasket refers to Povey at [3], [12], [14] and [60].
298 Spain responds by contending that even in Australia’s dualist system, the issue at hand is one of public international law when one examines the nature of the rights sought to be assigned as well as relevant choice of law rules: namely does the ICSID Convention permit the assignment of the benefit of the ICSID awards? It submits that the applicants have not established that the answer to that question is “yes”.
299 The question of whether Blasket can enforce the RREEF awards in this court as assignee raises two separate questions:
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(See Collins L and Harris J, Dicey, Morris & Collins on the Conflict of Laws (16th ed, Sweet & Maxwell, 2022) at 1414, Rules 143(b) and (a) respectively.)
300 As to question (2), it appears there is no dispute. Assuming the answer to question (1) is “yes”, any question of the validity of the assignment would be a question of English law, as per the governing law clauses in each of the deeds. Spain does not raise any English law issue regarding validity in this respect, and thus it is common ground that if the rights under or in respect of the awards constitute property capable of assignment, Spain’s assignment case will fail.
301 As to (1), this directs attention to which system of law governs the question. This is the main point on which the parties diverge. Spain contends that the question of the assignability of arbitral awards is a question of international law, while the applicants contend that it is relevantly a matter of Australian law and the IAA (although, it should be noted that the applicants nonetheless argue that there is no prohibition on the assignment of ICSID awards under the ICSID Convention or in public international law).
302 On either approach, I have reached the conclusion that Blasket is the proper assignee of the rights under and in respect of the award against Spain that were previously held by the assignors, the RREEF parties, and that Blasket can enforce the awards in this Court.
303 It is convenient to address the question of whether the relevant rights are assignable with reference, first, to international law and then to domestic law.
304 It is worth recalling that the property the subject of the purported assignment in this case is “all of the rights, interests and benefits of [the RREEF parties] under or in respect of [the RREEF awards]”. Contrary to the applicants’ submissions on this point, these are rights created on the international plane, out of the consent to arbitration by the parties under Arts 26(3)(a) and 26(4)(a)(i) ECT and Arts 25(1) and 26 ICSID Convention. The awards are the outcome of such consent. There is nothing in the awards or the deeds that suggest that any of the rights arising under the awards require any role for Australian law or the domestic law of any one of the myriad countries where the awards might be enforced. As such, the better view is that the question of whether the rights in respect of the awards are property capable of assignment is one governed by international law.
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305 This position accords with the views in leading private international law texts as to the relevant choice of law rule, which both sides cite in their submissions. For example, in Dicey, Morris & Collins, Rule 143(1)(b) is that “the law governing the right to which the assignment relates determines its assignability” (at [25R-057]). The same position is apparent from Davies M, Bell A S, Brereton P L G and Douglas M, Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis, 2020) at [33.68] where it is said that “most English textwriters support the proposition that the question of whether an intangible is assignable at all was at common law determined by the law under which the right was created”, citing the position from Dicey, Morris & Collins. See also to similar effect Mortensen R, Garnett R and Keyes M, Private International Law in Australia (5th ed, LexisNexis, 2023) at [25.39]: “the issue of whether an intangible interest may be assigned at all is governed by the law in accordance with [which] the right is created. So, the assignability of a cause of action or right to sue is determined by the law of the place in which the cause of action arose, not by the law governing the assignment.”
306 Applying this, the law under which the rights seeking to be assigned (being the original rights in respect of the award itself) were created, is the ICSID Convention, notwithstanding that those rights are also given effect in domestic law. The rights to enforcement arise from Art 54 ICSID Convention.
307 In Blue Ridge Investments LLC v Republic of Argentina 902 FSupp 2d 367 (SDNY 2012), Gardephe J held that “party” in Art 54(2) includes an assignee as a “party” seeking recognition or enforcement. Given the many different uses of “party” in the ICSID Convention, and that where a specific party is intended that is generally made clear (eg Arts 25, 32, 64 and 67), I accept that interpretation as correct (the issue was not considered by the Court of Appeals: see Blue Ridge Investments LLC v Republic of Argentina 735 F3d 72 (2d Cir 2013) at 82 per Cabranes J for the Court).
308 Spain notes the District Court applied 22 USC § 1650a(a) which, while resembling s 35(4) IAA, contains the additional wording that an award “shall be given the same full faith and credit as if” a judgment of the court. Spain submits that the consequence is that this has the effect of turning an ICSID award into the equivalent of an out-of-jurisdiction judgment (eg from the Californian or Texan courts relative to New York), “before the court does anything”. It follows that for the purposes of assignability, the award is treated as if it were a product of US law, albeit from another state jurisdiction. By contrast, Spain says it cannot be assumed
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that the assignability of an award can be governed by Australian law in the same way. The distinction of the monist approach in the US versus the dualist approach in Australia is also cited in support. Separately, Spain criticises Gardephe J’s apparent failure to consider the narrower meaning of “the parties” in Art 53.
309 None of this detracts from the force of Gardephe J’s interpretation of “party” in the ICSID Convention. His Honour’s decision may have ultimately turned on municipal law, but only after concluding that “[n]othing in Article 54(2) suggests that it was intended to communicate that only a ‘party to the arbitration’ can seek enforcement of an ICSID Convention award, nor does any other provision in the Convention suggest such a restriction”. In other words, it was certainly not the case that no attention was given to the relevance of public international law as contained in the treaty terms on the question of assignability. As discussed immediately below and following, there is no basis in public international law to read into the ICSID Convention a prohibition on assignment. Nor am I persuaded there was error in considering that the operation of “party” in Art 54(2) might be wider than the use of “the parties” in Art 53 (in the sense of those immediately party to the award as claimed by Spain). As I have already concluded in these reasons, there is force to the view that Art 53 applies widely to the Contracting States as an erga omnes partes obligation and not only to those parties to the award. On that basis, the assignee, relevantly Blasket, has the right of recognition and enforcement under the ICSID Convention itself, which is an answer to Spain’s argument regarding standing. Those rights are then enforceable by Blasket under ss 33 and 35 IAA.
310 More generally, there is no public international law rule prohibiting the assignment of an award between a private party and a State, or the assignment of awards more broadly. As Professor Sarooshi addresses in his report, the existence of a rule of customary international law to that effect – as evidenced by both State practice and opinio juris – is doubtful. There is a paucity of authoritative consensus which establishes such a prohibition. In fact, the converse is illustrated by the judicial decisions which have accepted the in-principle assignability of such investor-State awards under municipal law: see eg CC/Devas (Mauritius) Ltd v Republic of India (No 2) [2023] FCA 527 at [33] per Jackman J (India FCA No 2); Belize Social Development Pty Ltd v Government of Belize 5 FSupp 3d 25 (DDC 2013) at fn 12 per Leon J citing Global Distressed Alpha Fund I LP v Red Sea Flour Mills Co Ltd 725 FSupp 2d 198 (DDC 2010); Gebre LLC v Kyrgyz Republic, 2022 ONSC 4137; FG Hemisphere Associates c République Démocratique du Congo, Cour d'appel de Paris [Paris Court of Appeal], No 18-10217, 7 December 2021 (cf Société CC/Devas c République
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d'Inde, Cour d'appel de Paris [Paris Court of Appeal], No 24-00152, 10 September 2024, which may tend to a different view, but cannot be authoritative on its own as to the existence of a customary rule). Relevantly, Professor Sarooshi refers to a practitioner survey in which 32 jurisdictions responded in the affirmative to the question of assignment of award debts as at 1 January 2022. As Jackman J observed in India FCA No 2 at [33], “it is the role of municipal law to fill this gap as a general principle of law widely accepted across different municipal systems” in the sense set out at Art 38(1)(c) of the Statute of the International Court of Justice (1945). That was clearly the approach taken by Gardephe J in the circumstances of Blue Ridge.
311 Returning to the terms of the treaty itself, there is nothing in the ICSID Convention suggesting any prohibition on assignment of rights under an award. There is no express provision concerning assignment, and any attempts to read in an implied prohibition to Art 54 would be inconsistent with its ordinary meaning as well as the object and purpose of the Convention. Similar considerations apply with respect to the ECT, and the ECT has no bearing on the issue of recognition and enforcement of an award pursuant to the ICSID Convention.
312 Spain submits that there cannot be an assignment of the rights at the level of international law because of Art 27(1) ICSID Convention which provides that no Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute between one of its nationals and another Contracting State that is subject to ICSID arbitration, “unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute”. Spain submits that where, as in the RREEF and Watkins proceedings, there has been a purported assignment and the assignee is a national of a third State, the suspension of diplomatic protection should logically operate in relation to the third State, but Art 27 does not provide for that – it being clear that it is only the parties to the “dispute” and the investor’s State that are implicated by Art 27. Spain submits that that is a telling contextual factor that supports the proposition that an award under the Convention cannot be assigned.
313 I am not persuaded by that submission. Diplomatic protection is suspended in relation to the dispute from its inception if the parties “shall have consented to submit or shall have submitted” the dispute to ICSID arbitration. Diplomatic protection is no longer suspended from when the award debtor State “shall have failed to abide by and comply with the award rendered in such dispute”. At issue is the assignment of the rights in and in respect of the
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award. By then, the suspension of diplomatic protection has either already ended or it has nearly ended – the only time remaining being for the award debtor State to abide by and comply with the award before it is properly regarded as having failed to do so. It is hard to imagine what basis there would be for diplomatic protection in that period because the investor would have an award in its favour that the award debtor State had not yet failed to comply with and abide by. If the award has been effectively assigned during that period, then the investor no longer has any need or basis for diplomatic protection and the award debtor State has no need for the suspension of such diplomatic protection. Whether the assignee is entitled to any diplomatic protection, whether before the award debtor State has failed to comply with the award or thereafter, is a matter that falls outside the Convention.
314 In the circumstances, I do not consider that Art 27 ICSID Convention has any bearing on the assignment question.
315 Beyond Art 27, Professor Hindelang observes on diplomatic protection that States are “caught in a complex web of political and legal relationships and constraints” and that they are therefore loath to expose themselves to the risk of a shift in the identity of the State capable of providing that diplomatic protection to the counterparty. That is, the home State of an award creditor may resort to countermeasures such as asset freezes in order to support its national obtain compliance with an award against an award debtor State. As a practical and political matter, the award debtor State has an interest in knowing from where those countermeasures may originate. I am equally not persuaded by this. Professor Hindelang appears to advance this as a broad consideration which supports a restrictive view of assignability of ICSID awards; however, this factor is too far removed from the immediate operation of the treaty regime suggested by the text analysed above to bear on its interpretation.
316 Insofar as this is said to be expressive of customary international law, some support is drawn from two decisions of ICSID tribunals – however, the decisions comment on limitations to assignment in very different legal contexts and not concerning awards. They concern, respectively, the severability of ICSID claims from ownership of assets (in that claims do not automatically accompany a purchase of the underlying investment) and the ineffectiveness of assignment as a means of curing a lack of jurisdiction to bring an ICSID claim (where a party’s home State was not party to the ICSID Convention, so that party sought to assign the claim to its subsidiary in another State which was party to the Convention): cf Daimler
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Financial Services AG v Argentine Republic (Award) (ICSID Arbitral Tribunal, Case No ARB/05/1, 31 October 2023) at [144]-[145] and Mihaly International Corporation v Democratic Socialist Republic of Sri Lanka (Award) (ICSID Arbitral Tribunal, Case No ARB/00/2, 15 March 2002) at [24].
317 The object and purpose of the Convention would be better served by allowing assignment by award creditors. Recalling that the High Court in Spain HCA described the primary object of the Convention as including the mitigation of sovereign risk and provision of legal security (at [40]), it could hardly be the case that assignability would detract from this purpose from the perspective of investors. Assignment to third parties enables award creditors to recover the value of compensation due to them in circumstances where full recovery from award debtor compliance is not feasible or expected to be protracted – circumstances which resemble the present proceedings in light of Spain’s potential EU law obstacles to payment: see Gaillard E and Penushliski I, “State Compliance with Investment Awards” (2020) 35(3) ICSID Review 540 at 590.
318 Spain also submits that if it has waived its foreign State immunity in proceedings for the enforcement of ICSID awards on the basis found by the High Court in Spain HCA, that waiver or submission is only in proceedings brought by the original award debtor and not by an assignee. Spain submits the rights that are sought to be enforced arising under Arts 53 and 54 ICSID Convention vest only in the award creditor.
319 In truth, that submission is merely another way of saying the same thing. If, as I have found, the ICSID Convention allows, or does not prohibit, the assignment of the rights in an award in either of the way that I have postulated, then, by becoming a Contracting State to the ICSID Convention Spain has waived its foreign State immunity in respect of the enforcement of an ICSID award whether that enforcement is sought by the original award creditor or by a subsequent assignee.
320 Spain submits that that approach is highly problematic and prejudicial to Spain because if Spain pays Blasket, the assignee, under that analysis there would be nothing to stop the RREEF parties, the assignors, from still enforcing the award somewhere else. I do not accept that foreign legal systems are so unsophisticated as to ignore a payment to Blasket as discharging the obligation to the RREEF parties. Under Art 62, all Contracting States to the ICSID Convention are required to make it effective in their territories, with the result that one can expect other Contracting States to recognise payment to the assignee under an assignment
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that is recognised under the law of another Contracting State as discharge of the obligation. Spain’s objection in this respect is not peculiar to assignments. The RREEF parties could have sought enforcement of the award in all ICSID Contracting States. If satisfaction of the award in whole or in part was achieved in one State, that could doubtless be raised in defence to enforcement in another Contracting State. The same is true of the position Spain finds itself in where all the rights in respect of an award have been assigned – if it has paid the assignor prior to receiving notice of the assignment or it has paid the assignee thereafter, it is hard to imagine that that could not be raised in defence to not having to pay twice.
321 Alternatively, the question of assignment can be approached from the perspective of the rights that exist in the domestic law of the forum. As submitted by Blasket, the award in favour of the RREEF parties against Spain could have been enforced in this Court “as if the award were a judgment or order of [the Court]” (s 35(4) IAA). That provision is the fulfilment of Australia’s obligation to the other States parties to the ICSID Convention under Art 69 to make the Convention effective in its territory. “The phrase ‘as if’ contains the command to treat the different as real: the award as a judgment, and the incidents and consequences that flow as if the award were a judgment”: Spain FCAFC No 3 at [9] per Allsop CJ, Perram and Moshinsky JJ agreeing.
322 Initially, the RREEF parties as the award creditors had that right of enforcement of the award as if it was a judgment (even though it was not). That is to say, on the relevant award being made (and subsequently not subject to any further application for rectification or annulment), there existed rights of enforcement of the award in Australian domestic law. On this limb of the case, there is no dispute that the RREEF parties had that right. The “Assigned Rights” under the deed of assignment are defined sufficiently broadly to include such rights of enforcement, ie “all of the rights, interests and benefits of the Assignors under or in respect of the Award” (emphasis added). Under Australian law, the rights of enforcement which pertain to an arbitral award are choses of action capable of being assigned. More specifically, under the law of New South Wales, such property can be assigned under s 12 of the Conveyancing Act 1919 (NSW) or in equity: see Austino Wentworthville Pty Ltd v Metroland Australia Ltd [2013] NSWCA 59; 93 ACSR 297 at [14], [30] and [81] per Barrett JA, Beazley P and Meagher JA agreeing; Norman v Federal Commissioner of Taxation [1963] HCA 21; 109 CLR 9 at 27-28 per Windeyer J. With respect to the exercise of federal jurisdiction, s 12
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Conveyancing Act is picked up and applied under s 79 Judiciary Act as federal law: Microsoft Corp v PC Club Australia Pty Ltd [2005] FCA 1522; 148 FCR 310 at [128] per Conti J. As mentioned above, the requirements for a valid assignment are met, and the assignment of the rights of enforcement that exist in domestic law is valid.
323 With reference to this general law, Spain refers to the principle that “the benefit of a contractual obligation cannot be assigned in cases where the identity of the person to whom the obligation is owed is a matter of importance to the person on whom the obligation rests”: Leveraged Equities Ltd v Goodridge [2011] FCAFC 3; 191 FCR 71 at [362] per Jacobson J, Finkelstein and Stone JJ agreeing, citing Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 at 668 per Lord Collins MR. In Tolhurst, notwithstanding the general principle of assignability at will, Lord Collins MR contemplated that consent could be required where “there are mutual obligations still to be enforced and where it is impossible to say that the whole consideration has been executed” (at 669). His Lordship referred to “contracts involving special personal qualifications in the contractor”, such as a commission for an artist. That is already a very different circumstance from an award rendered in favour of an investor. It is difficult to see how the “character, credit, and substance” or “special personal qualifications” of the assignee to an award would be of much relevance to an award debtor – the obligation to pay would remain the same. Nor is there anything further for an award creditor or its assignee to “perform” such that Spain would have such an interest. I reject the submission that the rights of enforcement enjoyed by RREEF were of such a personal nature as to not be assignable.
324 Spain’s further argument focusses on Art 53 ICSID Convention rather than Art 54. Spain submits that its obligation to abide by and comply with the terms of the award under Art 53 is an obligation that it owes the original award creditors, the RREEF parties, and not the assignee, Blasket, and that the corresponding right cannot be assigned. Even if that analysis is correct and the RREEF parties’ rights under Art 53 cannot be assigned, that has no bearing on the analysis at the level of Art 54. As explained, the RREEF parties had the rights of enforcement of the awards under Art 54 and s 35(4) IAA in Australian domestic law and there is no reason why those rights could not be assigned.
325 But in any event, by the operation of s 32 IAA, Spain’s obligation (to the RREEF parties) under Art 53(1) to abide by and comply with the terms of the award had domestic legal
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effect. The RREEF parties were entitled to enforce that obligation in Australia under the domestic statutory law. There is no reason why such a statutory right could not be assigned.
326 For those reasons, I find that the assignments by the RREEF parties and Watkins to Blasket are valid and enforceable and that Blasket is entitled to pursue enforcement of the awards under s 35(4) IAA.
327 The issue here only arises in the RREEF proceeding, if I am wrong on my findings in relation to investor companies that are nationals of Member States of the EU. In that event, Blasket submits that Spain’s arguments do not apply to RREEF Infrastructure (GP) Ltd, which is incorporated under the laws of the Bailiwick of Jersey, as it is not a Member State of the EU. On that basis, Blasket submits that it is entitled to enforce the award in the RREEF proceeding.
328 Jersey is one of the Channel Islands, a British Crown Dependency. The Channel Islands are not part of the UK except to the extent that the UK is responsible for their external relations. They have their own parliaments, laws and courts.
329 Article 355(5)(c) TFEU provides that the foundational treaties of the EU apply to the Channel Islands and the Isle of Man “only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972”. Article 1(1) of Protocol No 3 of the UK Accession Treaty provides that EU rules on “customs matters and quantitative restrictions ... shall apply to the Channel Islands and the Isle of Man under the same conditions as they apply to the United Kingdom”.
330 The EU rules on customs matters and quantitative restrictions are now embodied in Arts 28-37 TFEU – in Part 3 Title II “Free Movement of Goods”. It is only for the purpose of those provisions of EU law, relating to the free movement of goods, that Jersey and the UK are to be treated as one EU Member State (remembering that the relevant events were pre-Brexit so the UK is to be treated as a Member State). I accept, for the reasons explained by Mr
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Quigley, that Jersey is not to be treated as an EU Member State for any other purpose and no other provisions of EU law apply to Jersey.
331 Professor Hindelang opines that the application in Jersey of EU rules relating to free movement of goods renders its dispute with the RREEF Jersey company an intra-EU dispute attracting the application of the intra-EU objection because it is sufficient that a tribunal may have to apply and interpret EU law. Spain submits that “it would undermine the principle of autonomy for a dispute between a national of Jersey and a member state of the EU to be determined by a tribunal outside the EU system in the same way that that principle would be undermined in relation to a dispute between a national of a member state of the EU strictly so-called and a member state”. On that basis, Spain submits that the award in favour of the RREEF Jersey company raises the same conflict in apparent obligations as the other awards in favour of nationals of Member States of the EU.
332 In answer to Blasket’s submission that there was no issue of EU law relevant to or applicable in the dispute under the ECT between the RREEF parties and Spain, Spain submits that it is not for tribunals sitting outside of the EU system, “and certainly not for this Court”, to decide whether EU law was or was not relevant to the determination of the dispute; “[i]t follows that it is neither here nor there whether Blasket, RREEF Jersey, a tribunal sitting outside the EU system or even this Court think that EU law was or was not relevant to the determination of the dispute between RREEF Jersey and Spain. What matters, and what creates the relevant conflict, is that the CJEU has been denied the ability to decide that issue.”
333 Mr Quigley explains, with reference to Iannelli & Volpi SpA v Meroni (C-74/76) [1977] ECR 557 at [9]-[10], [12], that whatever the scope of the free movement of goods restrictions are under the relevant articles of the TFEU, they do not include obstacles to trade covered by other provisions of the Treaty. Therefore, even if EU law preventing quantitative restrictions on imports and exports is applicable in Jersey, the State aid prohibition in Arts 107-108 TFEU cannot be contained within the scope of free movement of goods and thus are not applicable in Jersey. I accept that analysis.
334 Professor Hindelang refers to Jersey Produce Marketing Organisation Ltd v States of Jersey (C-293/02) [2005] ECR I-9543; [2006] All ER (EC) 1126 at [46]-[47] in support of a submission that resolving a dispute between Jersey and Spain may concern the application or interpretation of EU law. However, what was said in that judgment is restricted to the
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application of the rules on customs matters and quantitative restrictions and not broader questions of EU law such as State aid. The relevant paragraphs are:
[46] It must be observed, next, that it is stated in Article 1(1) of Protocol No 3 that the Community rules on customs matters and quantitative restrictions are to apply to the Channel Islands and the Isle of Man “under the same conditions as they apply to the United Kingdom”.
[47] Such wording suggests that, for the purposes of the application of those Community rules, the United Kingdom and the Islands are, as a rule, to be regarded as a single Member State.
335 The CJEU was not stating as a generally applicable rule that the Channel Islands and the UK are treated as a single Member State outside of this context. Thus disputes not involving the free movement of goods, arising with a claimant or defendant that is incorporated in Jersey cannot be said to be intra-EU disputes. That includes the dispute between the RREEF parties and Spain.
336 As Jersey was not a Member State of the EU, and it was not to be treated as a Member State of the EU save in respect of EU rules concerning the free movement of goods which are not implicated in the dispute between the RREEF parties and Spain, there was no occasion for the application of EU law in that dispute. I reject the submission that only the CJEU can make that assessment. Spain asserts that the relevant dispute falls within the Achmea/Komstroy principles. In those circumstances, it is for this Court to make the determination of whether that is so which turns on whether the EU foundational treaties and EU law were required to be applied in that dispute. They were not, because the dispute did not raise any issue with regard to the EU rules concerning the free movement of goods.
337 For those reasons, if called upon to decide the question, I would find that RREEF Infrastructure (GP) Ltd is not to be treated as a national of an EU Member State in relation to the award in its favour against Spain.
338 In the NextEra proceeding, Spain raises a constitutional issue as outlined above (at [78(4)] and [79]).
339 The starting point is Spain’s submission, in essence, that it did not validly agree to the arbitrations because Art 26 ECT under which it purportedly agreed does not apply to intra-EU disputes. Put differently, it submits that Art 26 was not an offer by it to arbitrate under the
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ICSID system that was capable of acceptance and thereby create a binding agreement to arbitrate. It then advances the following propositions:
340 The starting point is that Spain is a Contracting State to the ICSID Convention, as is Australia. There is no dispute about that. Spain therefore agreed with, relevantly, Australia, that the closed loop ICSID system would apply in relation to it. It thus agreed not to litigate jurisdictional issues – such as whether it concluded an enforceable agreement to arbitrate – in an enforcing court in Australia as those issues are to be determined, by its agreement, in the closed loop system by a tribunal. Therefore, notwithstanding Spain’s contention that its agreements to arbitrate with the investors under Art 26 ECT are invalid as a consequence of EU law, for the purposes of proceedings in Australian courts it has waived its foreign State immunity in respect of proceedings for the enforcement of the awards.
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341 For that reason, the contention that by the ICSID system the question of whether Spain enjoys foreign State immunity, or whether it has waived it, is removed from the ambit of decision-making by the Court and left in the hands of the ICSID system is a false premise and must fail. It cannot be the case that the tribunal or the Secretary-General has any role with respect to determining if there has been waiver of immunity under Australian law. I reject Spain’s contention. This means the answer to question 2(a)(i) of Spain’s s 78B notice (extracted at [79] above) is “no”.
342 The answer to question 1(a), ie whether “upon the party seeking to recognise or enforce an arbitral award furnishing a copy of it as certified by the Secretary-General” of ICSID the Court is required by Art 54 or s 35(4) to conclude that Spain has waived foreign State immunity, is “no”. That is because, as held in Spain HCA (as discussed earlier in these reasons), it is Spain’s entering into the ICSID Convention that requires the conclusion as to it having waived its immunity, not the presentation of the certified copy of the award. Spain has waived its immunity in a proceeding in which enforcement of an ICSID award is sought. In such a proceeding, an issue to be determined will be whether there is an ICSID award. That issue can be determined with reference to a certificate from the Secretary-General (Arts 49(1) and 54(2)), but the waiver of immunity comes before that.
343 The answer to question 1(b) is “yes”. As already canvassed at length in these reasons, Australia as a Contracting State is obligated to give effect to Art 54(1) ICSID Convention, as incorporated into Australian law under s 32 IAA. Section 35(4) is the means by which the enforcement of an award occurs by order of the Federal Court.
344 Turning to question 2, at its core, Spain argues that the jurisdiction conferred on this Court in an application for enforcement under s 35(4) and Art 54 is incompatible with Ch III of the Constitution, either because it impairs the institutional integrity of the Court or because it impermissibly vests the judicial power of the Commonwealth in arbitral tribunals. Those are the same arguments that were advanced and rejected in TCL albeit that that was in relation to the enforcement of an award under Art 35 Model Law and s 8 IAA with reference to the New York Convention. See TCL at [3] per French CJ and Gageler J and [56]-[57] per Hayne, Crennan, Kiefel and Bell JJ. Although the circumstances in which a court may refuse to enforce an ICSID award are far narrower than those under the New York Convention and the Model Law, there are nevertheless a multiplicity of such circumstances. The role of the Court in enforcing an ICSID award is not one of merely rubber-stamping the award in an
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administrative-type act. There are a number of matters that the Court may have to inquire into and determine depending on what issues are raised by the parties.
345 In relation to the award, the following matters might require determination: Is the award on which the applicant claims really an ICSID award as referred to in Art 53(2)? Is the purported award genuine? Is there a certificate from the Secretary-General as referred to in Arts 49(1) and 54(2)? Is the purported certificate genuine? Has the award been annulled under Art 52? Is the award stayed under Arts 50(2), 51(4) or 52(5)?
346 In relation to the parties, the following matters might require determination: Are the parties to the case the parties to the award? If the applicant is not a party to the award, does the applicant nevertheless have the right to enforce the award because it is the assignee of the rights to do so, or on some other basis? If by assignment, is the assignment valid and enforceable? If the applicant is a party to the award, does the applicant still have the right to enforce the award or has it transferred that right to another party, perhaps by assignment? If by assignment, is the assignment valid and enforceable?
347 In relation to the relief, the following matters might require determination: Is the relief that is sought the right relief as available under s 35(4) and does it enforce “the pecuniary obligations imposed by that award” under Art 54(1)? Has the award already been paid, whether wholly or in part? What interest, if any, is to apply, both before judgment and thereafter? What costs orders should be made, both on the basis of any costs award by the tribunal and in the enforcement proceeding?
348 In making those determinations and in enforcing the award, or refusing to enforce it, the court is exercising judicial power (TCL at [32] per French CJ and Gageler J and [104] per Hayne, Crennan, Kiefel and Bell JJ). In doing so, it quells a controversy between the parties and creates a new charter of rights and obligations expressed in the judgment of the court (TCL at [32]-[33] per French CJ and Gageler J). The existence of the multiplicity of circumstances in which a claim for enforcement of an award may fail, and the requirement that the enforcing court inquire into and make determinations in relation to those circumstances (ie “a determination of questions of legal right or legal obligation”: TCL at [33]), is an entirely appropriate and proper exercise of judicial power; the relative narrowness of those circumstances does not impair the integrity of the court as a Ch III court: TCL at [103]-[104].
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349 Insofar as Spain’s point about delegation of judicial power is concerned, as between Spain and Australia, Spain has agreed that the claims made by the investors, including any question of the validity of the agreement to arbitrate, be determined in the ICSID system. That consensual foundation to the determination of those claims does not result in an unconstitutional delegation of judicial power: TCL at [106], [108]. Brandy is entirely different because there the exercise of power was not by agreement but by the coercive force of the legislation with the result that it was an unconstitutional delegation of judicial power: TCL at [108].
350 The result is that the answers to questions 2(a)(ii) and (b) are “no”.
351 As mentioned, the European Commission applied by interlocutory applications for leave to intervene in all the proceedings pursuant to r 9.12 FCR. It read two affidavits of Leo Flynn, Principal Legal Adviser to the Commission in Brussels, Belgium (at an address in the aptly named Rue de la Loi). The affidavits deal with EU rules in relation to State aid and the Commission’s role in relation to the possible contravention of those rules by Spain in the principal proceedings in the event that it pays the awards in these proceedings. By the parties’ consent, Mr Flynn’s affidavits were taken as read by Spain in the event that the Commission was denied leave to intervene.
352 The Commission also relies on brief written submissions on its intervention which, in two pages, contain the submissions that it makes in the proceedings in the event that leave to intervene is granted. Mr Nick Gallus, who appeared for the Commission on the intervention application, did not seek to make any oral submissions, either on the interlocutory applications or the substantive proceedings. Rather, he was available to answer any questions from the Court if there were any. There were not.
353 The Commission seeks leave to make two submissions:
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354 In addition to those two submissions, the Commission highlights relevant aspects of the CJEU’s decision in European Commission v UK, which concerned Micula UKSC (as discussed above).
355 Under r 9.12(2) FCR, the Court may have regard to the following considerations in determining whether to grant leave to intervene:
356 Regarding r 9.12(2)(a), the Commission submits that its proposed contribution will be useful and different from the contribution of the parties as its proposed submissions reflect the EU’s official position, with the Commission being the external representative of the EU which speaks on its behalf before international and non-EU domestic courts and tribunals. Additionally, it submits that it has additional authority specific to the question of State aid pursuant to Art 108(2) TFEU which grants the Commission exclusive authority to identify illegal State aid and determine its compatibility with EU law.
357 As to r 9.12(2)(b), the Commission submits that it will not unreasonably interfere with the proceedings as its submissions are short and are capable of being addressed by the parties without imposing a significant burden.
358 The Commission raises two further matters supporting its application for leave to intervene. First, it argues that the EU has a substantial interest in the outcome of these proceedings, as they concern (according to the Commission) attempts by EU investors to enforce awards obtained against an EU Member State in contravention of EU law. Second, it notes that the Commission frequently intervenes in proceedings both within the EU and in other countries on matters of State aid, including in many similar arbitration-related proceedings against Spain before the US District Court for the District of Columbia.
359 Spain, in support of the Commission’s applications for leave to intervene, states that as the “guardian” of the EU foundational treaties, the Commission is in a better position than Spain to make submissions as to the systemic consequences of the applicants’ contentions.
360 The applicants oppose the Commission’s applications for leave to intervene.
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361 The Commission’s first proposed submission merely affirms that Spain’s submissions on EU law accord with what the Commission says is the content and effect of EU law. That does not add anything to the case or offer any assistance. In the main, I have not come to a different view on the state of EU law in these reasons; rather, the crux has been the effect of EU law on public international law binding Australia.
362 As to the Commission’s second proposed submission about State aid, I accept the applicants’ submission that it concerns matters that do not arise at the stage of the proceedings in this Court. As Perram J noted in Spain FCAFC at [114], 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 any event, the Commission’s submission is no different from Spain’s.
363 Finally, I have dealt with the Micula saga above, including the most recent decision of the CJEU. The Commission’s submission adds nothing beyond what Spain has contributed in that regard.
364 In the circumstances, I would dismiss each of the Commission’s interlocutory applications to intervene with costs.
365 In the result, I find that Spain waived its foreign State immunity in all the proceedings for enforcement of the awards under s 10 Immunities Act. Also, Spain’s defences on the merits in all the proceedings fail. There should be judgments in favour of the applicants on each of the awards. As I understand the position (ie without deciding), assuming that no recoveries have otherwise been made, that means that the capital judgments in each proceeding will be:
366 To those amounts there will need to be added pre-judgment interest and costs of the arbitral proceedings where those were ordered.
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367 As the applicants have been successful in these proceedings, they should have their costs.
368 I will allow the parties to bring in agreed or competing orders to give effect to these reasons and to deal with any outstanding matters of quantification, interest and costs. If necessary, I will also allow for further submissions to be made on those issues. In the meanwhile, the proceedings should all be listed for case management on a mutually convenient date within a few weeks from the publication of these reasons.
I certify that the preceding three
hundred and sixty-eight (368)
numbered paragraphs are a true copy
of the Reasons for Judgment of the
Honourable Justice Stewart.Associate:
Dated: 29 August 2025