Operafund v Spain: In London, an ICSID Award Cannot Simply Be Sold
The Court of Appeal confirms that an ICSID award cannot be assigned without the debtor State's consent, leaving award buyers and funders to rethink their structures.
Updated:
On 2 November 2026, the Court of Appeal of England and Wales dismissed the appeal in Operafund Eco-Invest SICAV Plc v Kingdom of Spain [2026] EWCA Civ 1392 and confirmed that an award rendered under the ICSID Convention cannot be voluntarily assigned without the consent of the debtor State. The investors had won about €29.3 million against Spain in 2019 over the rollback of renewable-energy incentives, registered the award in England in 2021, and in 2024 purported to transfer it to Blasket Renewable Investments, a Delaware-based funder that then asked to be substituted as claimant. The court held that assignability is a question of international law rather than English law; that customary international law contains no rule allowing assignment without State consent; that only a party to the award can invoke Article 54(2) of the Convention; and that registration does not create a separate English right capable of transfer. This matters because award trading has become a real market, and first-instance courts in the United States, Australia and the Netherlands have taken a more permissive view. Blasket has sought permission to appeal to the UK Supreme Court.
In my view, the judgment is intellectually honest but commercially awkward. Its strength is discipline: an ICSID award is a creature of a treaty between States, and the court refused to invent a transfer right the Convention does not grant, while openly acknowledging that it is out of step with other jurisdictions. Its weakness is that it leaves a delocalised ICSID award less liquid in England than an ordinary New York Convention award, a strange outcome for a system built to make investor protection more effective! The court also left open involuntary transfers, such as insolvency, and cases where the State consents, so the map is still incomplete. The practical lesson for funders and award holders is clear: in England, do not rely on assignment; keep the original creditor as the enforcing party and build the economics through contractual control, cooperation duties, proceeds-sharing and security. I believe careful drafting, not doctrine, will now decide who actually gets paid!
Source: Farrer & Co, November 2026; Akin, 6 November 2026. Image: Wikimedia Commons, David Castor, CC0.
