Author: *Bárbara Bada
| Jurisdiction: | Topics: |
The English Commercial Court’s decision in OperaFund Eco-Invest SICAV plc & another v. The Kingdom of Spain is being read in the market as a door-closing moment: if an investor cannot assign an ICSID (and, on the court’s reasoning, ECT) award to a third-party purchaser, then the secondary market for “exit” transactions in investment awards must shrink. That conclusion is too neat. The judgment is a serious constraint on one legal mechanism—formal substitution of a third-party assignee as the claimant in UK ICSID enforcement proceedings—but it is not a death sentence for monetization. It is, instead, a forced redesign.
A secondary market does not need assignment of the right to seek recognition and enforcement to function. It needs cash flows that can be priced, and contractual and procedural levers that reliably deliver those cash flows to the purchaser. The English court held that the ICSID Convention’s recognition and enforcement rights are personal to the original investor and cannot be passed to a stranger through assignment for UK enforcement purposes.[1] But the court also acknowledged that commercial reality does not evaporate: the original investor can still enforce, while the purchaser can still (depending on the deal) control or benefit from the enforcement process through private law arrangements.[2] That is the real pivot point. London has not outlawed “award trading.” It has made “award trading by substitution” the wrong tool—at least for ICSID (and ECT) awards in UK proceedings.
This post explains (i) what OperaFund actually decided and why, (ii) how that approach contrasts with Australia’s more permissive reasoning and the U.S. line of authority, and (iii) how the market can—and likely will—keep building exit structures that survive without formal assignment, by relocating the value transfer from the public enforcement right to private-law cashflow and control architectures.
1. What the English Court Actually Shut Down (and What It Didn’t)
OperaFund arose from an application to substitute Blasket Renewable Investments LLC for the original claimants in ongoing UK proceedings connected to the enforcement of an ICSID award rendered under the ECT framework.[3] The application relied on CPR r. 19.2(4)(a), which permits substitution where an existing party’s interest has “passed” to a new party.[4] The claimants had executed an assignment agreement purporting to transfer “all of the rights, interests and benefits” under or in respect of the award to Blasket.[5] Spain resisted, arguing that an ICSID award (and, independently, an ECT award) is not assignable on the international plane without state consent.[6]
The court rejected an issue estoppel argument based on the Australian proceedings because the Australian judgment was not final and, crucially, Spain had not submitted to the Australian court’s jurisdiction—Spain appeared to contest jurisdiction/state immunity, which does not amount to submission under English recognition principles.[7] With that out of the way, the core was construction of the ICSID Convention (and then the ECT), using Vienna Convention interpretive methods.
The decisive move was the court’s reading of Article 54(2) of the ICSID Convention—“[a] party seeking recognition or enforcement”—in light of the Convention’s structure and Article 53’s statement that the award “shall be binding on the parties.”[8] The claimants argued that “a party” in Article 54(2) is not textually limited to “party to the dispute,” so an assignee can be “a party seeking recognition.”[9] The court disagreed. Looking across Chapter IV, Section 6, and the Convention’s repeated use of “the parties” and “a party,” the court concluded that Article 54(2)’s “a party” means a party to the ICSID arbitration and no one else.[10] The requirement to furnish a certified copy of the award reinforced this: the award binds only the parties identified on its face, and the Convention’s mechanism presupposes that the actor invoking enforcement is one of those parties.[11] In short: an assignee cannot step into the investor’s shoes for purposes of seeking recognition and enforcement under Article 54 in UK proceedings.[12]
The court then extended the logic to the ECT by reference to its subrogation provision: if general assignment of treaty claims/awards were freely available, the ECT’s express subrogation mechanics (with host-state recognition) would be oddly redundant.[13] On that construction, ECT claims and awards are also not assignable in the relevant sense.[14]
Then came the attempted “workaround”: even if the award itself is not assignable under international law, perhaps registration in the UK under the Arbitration (International Investment Disputes) Act 1966 creates a new, freestanding bundle of English-law rights “in respect of the award” that can be assigned. The court rejected that too. The 1966 Act was characterized as a procedural implementation mechanism designed to give effect to Article 54’s enforcement obligation, not as a generator of new substantive rights capable of being assigned.[15] Allowing registration to create assignable domestic rights would risk jurisdiction-by-jurisdiction divergence—precisely what the ICSID system was designed to avoid.[16]
So, what is left standing? Quite a lot. The original award creditor remains fully entitled to register and enforce.[17] Nothing in OperaFund declares private agreements between an investor and a fund void; the court’s refusal was about who may invoke the ICSID enforcement machinery in UK courts.[18] And, critically, the court’s reasoning accepts that the fund can still be positioned—by contract—to control the process and capture the proceeds, even though the investor’s name stays on the court pleadings.[19] That is not a consolation prize. That is the blueprint.
2. The Comparative Pressure: Australia and the U.S. Are Not Reading the Room the Same Way
If OperaFund were the only relevant datapoint, the story would be “no assignment, no exit.” But the market is global, and enforceability planning is jurisdictional chess, not a single-board game.
In Blasket Renewable Investments LLC v Kingdom of Spain, the Federal Court of Australia confronted a similar business model—Blasket acquiring rights “under or in respect of” ICSID awards—and treated the assignability issue as one governed on the international plane, because the rights flow from treaty consent and the ICSID Convention’s enforcement framework.[20] Yet the Australian court took a fundamentally different view of Article 54(2)’s “party.” Relying, among other things, on Blue Ridge Investments LLC v Republic of Argentina (S.D.N.Y. 2012), it accepted that “party” in Article 54(2) can include an assignee seeking recognition or enforcement.[21] It also addressed Spain’s attempt to distinguish the U.S. authorities on the basis of U.S. implementing legislation and monist/dualist theory, but concluded that these distinctions did not undermine the interpretive force of the U.S. reading of the Convention text.[22]
The U.S. case most often invoked in this debate—Blue Ridge—held that “party” in Article 54(2) is not defined, is used with varying meanings across the Convention, and can reasonably be read to include an entity seeking to enforce, including an assignee.[23] The court’s textual point was simple: where the Convention intends to say “parties to the dispute,” it says so; Article 54(2) does not.[24] That reading facilitated confirmation/enforcement in the assignee’s name.
Put bluntly, we now have a triangle: England (no assignee standing under Article 54(2)), Australia (assignee standing accepted), and the United States (assignee standing accepted, at least in the Blue Ridge line).[25] That fragmentation matters because the business model for award trading is rarely “enforce only in one place.” It is “buy optionality” across jurisdictions, then monetize pressure, attachments, and settlement dynamics. OperaFund does not erase that optionality; it reweights it.
But it also creates a strategic question: if the UK—one of the most important enforcement hubs—refuses substitution, will buyers still pay for awards? Yes, because buyers are not only buying the procedural right to appear as claimant. They are buying expected recoveries. The market will adapt by acquiring economic exposure and control without needing to become the named enforcing “party.”
3. If Assignment Is Out, Where Does Exit Go? Into Cashflow and Control
The market’s core task is to separate (a) who has standing to push the ICSID enforcement button in court from (b) who ultimately receives the money and directs the litigation strategy. OperaFund blocks (a) from being transferred to a third party in UK ICSID proceedings.[26] It does not necessarily block (b).
That drives three structural shifts.
First, “assignment of the award” will be reframed as “assignment of proceeds.” Rather than purporting to transfer the Convention-based right to seek recognition/enforcement, the deal can transfer a contractual entitlement to the net recoveries obtained by the award creditor, together with security interests over those proceeds. The award creditor remains the one with standing; the buyer becomes the one with the economic upside. The legal heart is not “you are the claimant now,” but “you must enforce, and you must pay me what you recover.” This is not exotic; it is the commercial logic of receivables finance, simply applied to sovereign-facing recoveries.
Second, control will be delivered through agency and governance devices. Because the buyer is underwriting enforcement costs and often pricing the asset based on an enforcement roadmap, the buyer needs to steer. That can be achieved through powers of attorney, covenants requiring the award creditor to follow a strategy, step-in rights if the creditor refuses, and appointment rights over counsel and enforcement agents—while keeping formal procedural standing with the creditor. OperaFundThe market will take that sentence and build an industry around it.
Third, the more sophisticated version is “structural transfer of the investor” rather than assignment of the award. If the UK court is protecting the state’s consent to arbitrate with a specific investor—not “the world at large”—then buyers will look for methods that preserve identity continuity while changing ownership upstream.[28] Corporate reorganizations, mergers, or share transfers that leave the award creditor entity intact but change who owns it can achieve functional monetization without triggering the formal “new party” problem. This approach is not universally available and raises separate treaty and enforcement risks, but as a design space, it is obvious: if the rule is “only the party may enforce,” then buyers will buy the party.
These techniques are not “getting around” the judgment; they are accepting the judgment’s boundary and building inside it. The enforcement right stays with the investor. The economics and direction of travel move to the buyer.
4. Why the Policy Logic of OperaFund Still Leaves Room for a Secondary Market
The court’s policy concern—anchored in treaty construction—is that assignment could cause states to “lose control over who could assert treaty breaches and bring arbitral proceedings against them.”[29] That concern is most acute before and during arbitration: if treaty claims can be freely traded, a state might face claims prosecuted by actors it never contemplated when consenting. But OperaFund was post-award. The arbitration was over, liability fixed (subject to Convention remedies), and the dispute had matured into a monetary obligation.
Even if one accepts the court’s reading that Article 54(2) limits who may seek recognition/enforcement, the underlying policy is not obviously offended when the original award creditor remains the named enforcing party but agrees to remit proceeds to a buyer. Spain is still facing enforcement pushed by the same investor entity; the state has not been forced to litigate against a stranger in the formal sense the court found unacceptable. The buyer’s involvement is indirect, mediated through private law.
That is why secondary markets can survive: they can respect the “consent-to-counterparty” principle at the procedural surface while reallocating economics beneath it. The state may dislike that result—but disliking it is not the same as the Convention prohibiting it. OperaFund targeted substitution, not monetization.
There is, however, a pressure point: if private arrangements give the buyer too much control, a state may argue that the “real party in interest” is no longer the investor, and that the enforcement process is being driven by a stranger in substance. Whether that argument can gain traction under the ICSID Convention is uncertain, but it is exactly the kind of litigation creativity sovereigns deploy when confronted with new monetization techniques. The smarter the market gets at separating standing from economics, the more tempting it becomes for respondent states to repackage the fight as one about abuse, process integrity, or the boundaries of treaty consent.
5. Practical Implications for Drafting: Precision, Not Poetry
Because ARIA’s readers do not need the basics of ICSID, the useful takeaway is not “assignment is risky.” It is: enforcement planning now turns on the micro-architecture of the transaction documents, and the choice of forum.
If a buyer wants direct enforcement standing in its own name, OperaFund makes the UK a hostile venue for that goal for ICSID and ECT awards.[30] Australia and the United States look meaningfully more permissive on the Article 54(2) question (at least at first instance in key cases), which increases their attractiveness as enforcement fora for assignee-led strategies.[31] But “permissive” does not mean “risk-free,” especially if appeals or subsequent cases tighten the approach.
For UK-facing enforcement, the deal must be built around the award creditor as the enforcing actor. That means carefully drafted obligations to pursue enforcement, cooperate with registration steps, resist settlement below agreed thresholds, and pay over proceeds; security over proceeds; and robust remedies if the award creditor defects. It also means building in the ugly truth the UK court highlighted: the assignee is dependent on the creditor’s continued cooperation.[32] The transaction must price that cooperation risk and mitigate it contractually.
Finally, for ECT awards, OperaFund’s reliance on Article 15 (subrogation) as an argument against free assignment will force parties to distinguish “assignment” from “subrogation-like transfers,” and to test whether comparable treaty clauses in other instruments can be weaponized similarly.[33] That is the next frontier: states will search treaties for textual hooks to argue that the consent framework implies non-transferability, and buyers will search for transactional forms that do not trigger those hooks.
Conclusion: The Market Isn’t Dying; It’s Evolving into Two Layers
OperaFund is a real constraint. It blocks a clean, litigation-facing exit via substitution of an assignee as claimant in UK ICSID (and ECT) enforcement proceedings, grounded in a restrictive reading of Article 54(2) and a refusal to let domestic registration law manufacture assignable rights.[34] But it does not eliminate the economic rationale for award trading, and it does not erase the ability of a buyer to capture value through private-law structures while leaving standing with the original investor.[35]
The secondary market will survive by splitting into two layers. The public layer—who appears in court—will often remain the original award creditor. The private layer—who pays, who controls strategy, who receives proceeds—will be engineered through contract, security, and corporate structuring. The “exit” will still happen. It just will not happen through the one mechanism that OperaFund made too blunt to use in London.
In that sense, the judgment’s most important effect may be to accelerate legal innovation. When courts close the obvious route, the market does not stop. It learns to take sharper turns.
[1] OperaFund Eco-Invest SICAV plc & another v The Kingdom of Spain [2025] EWHC 2874 (Comm) (High Court, Commercial Court, 10 Nov. 2025).
[2] See OperaFund, supra note 1 (noting that the original award creditor remains able to enforce and that contractual arrangements may still operate to allow a purchaser to recover economically).
[3] Clifford Chance, English Commercial Court finds that ICSID and ECT awards are not assignable (Dec. 2, 2025) (summary of background and procedural posture) https://www.cliffordchance.com/insights/resources/blogs/arbitration-insights/2025/12/english-commercial-court-finds-that-icsid-and-ect-awards-are-not-assignable.html
[4] OperaFund, supra note 1 (discussing CPR r. 19.2(4)(a) substitution framework).
[5] OperaFund, supra note 1, paras. 72–73 (describing the assignment agreement language).
[6] OperaFund, supra note 1 (Spain’s non-assignability argument).
[7] OperaFund, supra note 1 (issue estoppel analysis); see also Civil Jurisdiction and Judgments Act 1982, s. 33 (UK) (appearance to contest jurisdiction not submission).
[8] Convention on the Settlement of Investment Disputes between States and Nationals of Other States, arts. 53–55 (1965) (ICSID Convention), https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf
[9] OperaFund, supra note 1, para. 42 (claimants’ reliance on Article 54(2)).
[10] Id. paras. 44–51 (contextual reading; conclusion that “a party” means a party to the dispute. As a matter of construction of Articles 53–54, the right to seek recognition and enforcement is confined to a party to the arbitration).
[11] Id. para. 45 (certified copy and contextual inference).
[12] Id. para. 51.
[13] Id. para. 52 (ECT Article 15 subrogation as implying non-assignability, , not an express prohibition).
[14] Id. para. 52.
[15] Id. paras. 75–76 (1966 Act as procedural implementation; no new substantive rights).
[16] Id. para. 76 (concern about divergent effects across jurisdictions).
[17] ICSID Convention, supra note 8, art. 54(2).
[18] OperaFund, supra note 1 (scope of decision focused on standing/substitution, not the general validity of private arrangements).
[19] WilmerHale, English High Court Rules That a Third-Party Assignee Cannot Seek Enforcement of an ICSID Award Against Spain (Nov. 25, 2025) (noting reliance of assignees on award creditor cooperation), https://www.wilmerhale.com/en/insights/client-alerts/20251125-english-high-court-rules-that-a-third-party-assignee-cannot-seek-enforcement-of-an-icsid-award-against-spain
[20] Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, paras. 304–06 (Austl.) (rights created on the international plane; enforceability rights arise from Article 54), PDF: https://files.lbr.cloud/public/2025-08/Blasket%20Renewable%20Investments%20LLC%20v%20Spain%20%5B2025%5D%20FCA%201028.pdf?VersionId=q5.rM1Sr9orQ.Ep4rYvj_FZx6XOBmxRG; see also id. paras. 287–92 (assignment structure).
[21] Id. para. 307 (accepting Blue Ridge interpretation that “party” can include an assignee).
[22] Id. paras. 308–09 (addressing statutory/monist-dualist distinctions; reaffirming interpretive point).
[23] Blue Ridge Invs. LLC v. Republic of Argentina, 902 F. Supp. 2d 367 (S.D.N.Y. 2012) (Article 54(2) “party” not defined; multiple meanings; assignee may seek enforcement) PDF: https://cdn.lbresearch.com/files/gar/articles/Blue_Ridge_v_Argentina-Op_and_Order-09-30-2012.pdf
[24] Id. (noting the Convention’s different uses of “party” and “parties to the dispute”).
[25] Compare OperaFund, supra note 1, para. 51, with Blasket, supra note 20, para. 307, and Blue Ridge, supra note 23.
[26] OperaFund, supra note 1, para. 51.
[27] OperaFund, supra note 1. Also, Holman Fenwick Willan LLP, English Commercial Court Rules That Assignment of ICSID Awards is Not Permitted (Dec. 19, 2025) (observing secondary market not eliminated; more inconvenient), https://www.hfw.com/insights/english-commercial-court-rules-that-assignment-of-icsid-awards-is-not-permitted/
[28] OperaFund, supra note 1 (concern that states would lose control over who may assert treaty rights).
[29] Id. para. 46 (referencing commentary concerns about state control over who may bring claims).
[30] Id. para. 51; id. paras. 75–76.
[31] Blasket, supra note 20, paras. 307–09; Blue Ridge, supra note 23.
[32] WilmerHale, supra note 19 (assignees reliant on award creditor cooperation); OperaFund, supra note 1 (same practical implication).
[33] OperaFund, supra note 1, para. 52.
[34] Id. para. 51; id. paras. 75–76.
[35] Id.; HFW, supra note 27.
*Bárbara Bada is an LL.M. student specializing in international arbitration, with a focus on investment arbitration and the enforcement of arbitral awards. She is currently pursuing dual qualification in Spain and England & Wales. She has experience in international arbitration at both law firms and arbitral institutions, and serves as a coach for the Willem C. Vis International Commercial Arbitration Moot, and is Deputy Director of the Young International Arbitration Committee (YIAC) of the Miami International Arbitration Centre (MIAC). She has published and written on arbitration-related topics for academic and practitioner-oriented platforms.