Commercial Disputes Weekly Issue 301 10 November 2026

Assignability of investment treaty awards, shipbuilding contract interpretation, insolvency standards and the impact of injunctions are all dealt with in this edition of Commercial Disputes Weekly.

ARBITRATION

This decision arose from an ICSID arbitration award obtained against the Kingdom of Spain under the Energy Charter Treaty (“ECT”) in relation to amendments to the tariff regime for investments in renewable energy. Whilst enforcement procedures (and challenges) were ongoing, the successful parties purported to assign all rights, interests and benefits in the award to Blasket Renewable Investments LLC (a company which was incorporated for the purposes of acquiring investment treaty awards). When Blasket applied to be substituted in the proceedings, the High Court dismissed the application on the basis that there had been no valid assignment. The Court of Appeal upheld that decision. The assignability of an ICSID award was governed by international law and neither the ICSID Convention nor the ECT conferred a power to assign. Nor does customary international law contain a provision permitting assignment. It provides that treaty rights should only be assigned with the obligor’s consent. The reference to ‘a party’ under the ICSID Convention could mean that only a party to the ICSID award can seek recognition and enforcement of the award.  As a result, such treaty rights are not assignable without the consent of the obligor state.

Operafund Eco-Invest Sicav Plc v The Kingdom of Spain, [2026] EWCA Civ 1392, 2 November 2026

Maritime

The Commercial Court has been asked to consider the interpretation of a clause in a series of shipbuilding contracts which provided for payment of any disputed additional costs claim to be deferred on delivery of the vessel in return for a guarantee. The additional charges claimed allegedly rose from the insolvency of one of the subcontractors shortly after the contracts were entered into. The tribunal decided that there was an arguable case that the insolvency-related costs fell within the guarantee provisions but had insufficient material to conclude whether they did. Following an appeal under section 69 of the Arbitration Act 1996, the court considered the matter on the basis of conventional contract construction principles and held that the types of additional costs that required a guarantee were those modifications or changes coming from the buyer. The costs here resulted from the loss of a subcontractor and did not therefore trigger the provision of a guarantee. The appeal was allowed.

AS v EB [2026] EWHC 2714 (Comm), 10 September 2026

INSOLVENCY

The appeal against the making of a bankruptcy order against Mr Drelle came before the court for the second time after the Supreme Court allowed an appeal on the first ground, holding that an unrecognised foreign judgment debt could form the basis of a bankruptcy petition. The remaining grounds of appeal were remitted to the Court of Appeal. The court allowed the appeal on various grounds relating to the witness and expert evidence including that the two were not considered together and erroneous conclusions were drawn. The court confirmed that there is not a heightened standard of proof simply because the attempt is to impugn a foreign judgment. The English court will apply the usual procedural rules and the single civil standard of proof of the balance of probabilities. The debt was held to be genuinely and substantially disputed and so the bankruptcy petition was set aside. The recognition proceedings would be the appropriate place to determine the issues.

Servis-Terminal LLC v Drelle [2026] EWCA Civ 1390, 30 October 2026

INJUNCTIONS

In a dispute arising from crude oil sale and purchase transactions, the defendants had been subject to a worldwide freezing order for ten years. After the claims were dismissed, the claimants were liable to compensate the defendants for losses suffered due to the cross-undertaking given when they obtained the injunction. The court ordered compensation for a number of lost business and investment opportunities, arising not only from the restraining effect of the injunction, but also from the reputational damage which impacted the willingness of other parties to deal with the defendants.

Alta Trading UK Ltd and others v Bosworth and Hurley [2026] EWHC 2767 (Comm), 29 October 2026