|2001 Renewables Directive||Directive 2001/77/EC "on the Promotion of Electricity Produced from Renewable Energy Sources in the Internal Electricity Market."|
|2005-2010 Plan||Plan for the Promotion of Renewable Energies in Spain 20052010.|
|2009 EU Directive||Directive 2009/28/EC "on the promotion and use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC."|
|2012 Judgements||Spanish Supreme Court judgements issued in 2012 establishing that the remuneration regime applicable to RE producers could be validly modified, in accordance with the principle of reasonable return.|
|ACS||Actividades de Construcción y Servicios, S.A.|
|Adjusted NPV||The adjusted net present value of the reasonably expected cash flows of the Andasol Plants.|
|Alatec||Alatec Ingenieros Consultores y Arquitectos.|
|Alatec Report||Report prepared by Alatec, titled "Technical Evaluation of the Solar Thermal Plants with Parabolic Trough Collectors, Property of ACS/Cobra in Spain", dated 15 March 2011.|
|Altermia||Altermia Asesores Técnicos, S.L.|
|Altermia Report||Report prepared by Altermia, titled "Independent Technical Analysis - Technical Due Diligence of Three Thermosolar Projects in Spain", dated 7 July 2011.|
|Andasol Companies||Andasol-1 Central Termosolar UNO S.A. and Andasol-2 Central Termosolar DOS S.A.|
|Andasol Plants||The Andasol-1 Plant and the Andasol-2 Plant.|
|Andasol-1 Plant||A 49.9 MW CSP plant in Granada owned by Andasol-1 SA.|
|Andasol-1 SA||Andasol-1 Central Termosolar UNO S.A.|
|Andasol-2 Plant||A 49.9 MW CSP plant in Granada owned by Andasol-2 SA.|
|Andasol-2 SA||Andasol-2 Central Termosolar DOS S.A.|
|Antin||Antin Infrastructure Services Luxembourg S.a.r.l. and Antin Energía Termosolar B.V.|
|Antin Fund 1||Antin Infrastructure Partners (AIP) FPCI.|
|Antin IP||Antin Infrastructure Partners S.A.S.|
|Antin Luxembourg||Antin Infrastructure Services Luxembourg S.a.r.l.|
|Antin Termosolar||Antin Energia Termosolar B.V.|
|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings.|
|Base NPV||Base Net Present Value.|
|BDO Quantum Report I||Expert Report of BDO, titled "Expert economic-financial report on ANTIN and solar power plants", dated 30 July 2015.|
|BDO Quantum Report II||Expert Report of BDO, titled Expert rejoinder report to Brattle's "Rebuttal Report: Financial Damages to ANTIN", dated 29 February 2016.|
|BDO Regulatory Report I||Expert Report of BDO, titled "Economic and financial analysis of incentives to the solar thermal energy sector", dated 30 July 2015.|
|BDO Regulatory Report II||Expert Report of BDO, titled "Rejoinder Expert Report in response to the Brattle report 'Rebuttal Report: Changes to the Regulation of Concentrated Solar Power Installations in Spain'", dated 29 February 2016.|
|Bolaña WS I||Witness Statement of Mr. Mauricio Bolaña of 28 November 2014.|
|Brattle||The Brattle Group.|
|Brattle Quantum Report I||Expert Report of Brattle, titled "Financial Damages to Antin", dated 28 November 2014.|
|Brattle Quantum Report II||Expert Report of Brattle, titled "Rebuttal Report: Financial Damages to Antin", dated 18 December 2015.|
|Brattle Regulatory Report I||Expert Report of Brattle, titled "Changes to the Regulation of Concentrated Solar Power Installations in Spain", dated 28 November 2014.|
|Brattle Regulatory Report II||Expert Report of Brattle, titled "Rebuttal Report: Changes to the Regulation of Concentrated Solar Power Installations in Spain", dated 18 December 2015.|
|Centre||International Centre for Settlement of Investment Disputes.|
|Charter||The European Energy Charter.|
|CJEU||Court of Justice of the European Union.|
|Claimants||Antin Infrastructure Services Luxembourg S.a. r.l. and Antin Energia Termosolar B.V.|
|Claimants' Memorial||Claimants' Memorial submitted on 28 November 2014.|
|Claimants' Rejoinder||Claimants' Rejoinder on Jurisdiction, submitted on 15 April 2016.|
|Claimants' Reply||Claimants' Reply on the Merits and Counter-Memorial on Jurisdiction, submitted on 18 December 2015.|
|CNE||"Comisión Nacional de Energía", the Spanish National Energy Commission.|
|Commission's First Application||European Commission's Application for Leave to Intervene as a Non-Disputing Party, submitted on 14 November 2014.|
|Commission's Second Application||European Commission's Application for Leave to Intervene as a Non-Disputing Party, submitted on 9 December 2015.|
|Cooling-Off Period||The three-month negotiation period that must elapse before an investor can submit a claim to arbitration under Article 26 ECT.|
|CPI||Consumer Price Index.|
|CPI Formula||The mechanism set forth in Article 44(1) RD 661/2007 for updating the FIT pursuant to the CPI.|
|CPI-PI||The CPI at constant taxes excluding unprocessed foods and energy products.|
|CPI-PI Formula||The mechanism set forth in RDL 2/2013 for updating remunerations, rates and premiums for electricity sector activities in accordance with the CPI at constant taxes excluding unprocessed foods and energy products.|
|Crosbie WS I||Witness Statement of Mr. Mark Crosbie of 28 November 2014.|
|CSP||Concentrated solar power.|
|DCF||Discounted cash flow.|
|December 2009 Judgements||Spanish Supreme Court judgements of 3 December 2009, 9 December 2009 and 9 December 2009.|
|Disputed Measures||Jointly, Law 15/2012, RDL 2/2013, RDL 9/2013, Law 24/2013, RD 413/2014, Ministerial Order IET/1045/2014.|
|ECT||Energy Charter Treaty.|
|EEC||European Economic Community.|
|FET||Fair and Equitable Treatment.|
|Final Equity Value||The Adjusted NPV minus the net present value of the debt held by the Andasol Companies.|
|FIT||Feed-in-tariff mechanism provided in RD 661/2007.|
|Fixed Tariff||Type of FIT offered under RD 661/2007 in the form of a regulated tariff.|
|Further Measures||Jointly, Law 24/2013, RD 413/2014, Ministerial Order IET/1045/2014 and Ministerial Order IET/1882/2014.|
|GBP||British Pound Sterling.|
|Hearing||Hearing on Jurisdiction and the Merits was held at Paris, France from 19 October 2016 to 25 October 2016.|
|Herbert Smith||Herbert Smith Freehills (Madrid).|
|HS Report||Due diligence report issued by Herbert Smith on 25 March 2011, analysing the regulatory framework for CSP plants in Spain.|
|HTF||Heat transfer fluid.|
|ICSID||International Centre for Settlement of Investment Disputes.|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States.|
|IDAE||Instituto para la Diversificación y Ahorro de la Energía.|
|ILC Articles||The International Commission's Articles on the Responsibility of States for Internationally Wrongful Acts.|
|Initial Measures||Jointly, Law 15/2012, RDL 2/2013 and RDL 9/2013.|
|Intra-EU dispute||Dispute between an investor from the EU and a Member State of the EU.|
|Intra-EU investment||Investment made by an investor from the EU in the territory of the EU.|
|July 2010 Agreement||An agreement entered into between the Ministry and the CSP and wind industry associations, contemplating amendments to the SES regulatory framework.|
|Law 24/2013||Law 24 of 2013, enacted on 26 December 2013, regulating the Spanish electrical sector.|
|Law 54/1997||Law 54 of 1997 of 27 November 1997, on the Electric Power Sector, published on 28 November 1997.|
|Limited Partners||The 3 5 Limited Partners that invested in Antin Fund 1.|
|Mancini Report||Expert Report of Dr. Thomas R. Mancini of TRMancini Solar Consulting, dated 18 December 2015.|
|May 2007 Press Release||Press release dated 25 May 2007, announcing RD 661/2007, establishing that "The Government prioritizes profitability and stability in the new Royal Decree on renewable energy and combined heat and power".|
|Ministerial Order IET/1045/2014||Order IET/1045/2014 enacted on June 2014, establishing certain aspects of the economic regime applicable to the different RE installations.|
|Ministerial Order IET/1882/2014||Order IET/1882/2014 enacted on October 2014, for calculating the power attributable to the use of fuels in establishing thermoelectric solar installations.|
|Ministry||Spanish Ministry of Industry, Tourism and Commerce.|
|NCMC||Comisión Nacional de los Mercados y la Competencia, the Spanish National Commission on Markets and Competition.|
|New Regime||The regulatory regime applicable to RE producers in Spain after the introduction of the Disputed Measures, comprised of RDL 9/2013, RD 413/2014 and Ministerial Order IET/1045/2014.|
|Ordinary Regime||The regulatory regime applicable to conventional sources of energy production in the Spanish Electrical System, by opposition to the Special Regime applicable to renewable energy generators.|
|Parties||Collectively, the Claimants and the Respondent.|
|Poyry||Poyry Management Consulting.|
|Poyry's First Report||Report issued by Poyry, titled "Current State and Future Trends of Solar Power in Spain: An ILEX Energy Report to RREEF Infrastructure" in March 2011.|
|Poyry's Second Report||Report issued by Poyry, titled "Spanish Electricity Tariff Deficit - A Note from Poyry Management Consulting to RREEF", 11 May 2011.|
|Premium||A type of FIT provided under RD 661/2007 consisting of a fixed premium payment over and above the price received in the market, subject to caps and floors.|
|Pre-RD 661/2007 Judgements||Spanish Supreme Court Judgements of 15 December 2005, 25 October 2006, 20 March 2007 and 9 October 2007.|
|RAB||Regulatory Asset Base.|
|RAIPRE||"Registro Administrativo de Instalaciones de Producción en Régimen Especial", the Administrative Registry of Production Facilities under the Special Regime.|
|RD 2818/1998||Royal Decree 2818 of 1998, enacted on 23 December 1998.|
|RD 413/2014||Roya Decree 413 of 2014, enacted on 6 June 2014, regulating the activity of electrical energy production from renewable energy, waste or co-generation sources.|
|RD 436/2004||Royal Decree 436 of 2004, enacted on 12 March 2004.|
|RDL||Royal Decree Law.|
|RDL 9/2013||Royal Decree Law 9/2013, enacted on 12 July 2013, by which urgent measures are adopted to guarantee the financial stability of the electricity system.|
|REIO||Regional Economic Integration Organization|
|Request for Arbitration||Claimants' Request for Arbitration, dated 29 October 2013.|
|Request for Bifurcation||Respondent's Request for Bifurcation, submitted on 30 January 2015.|
|Respondent||The Kingdom of Spain.|
|Respondent's CounterMemorial||Respondent's Counter-Memorial on the Merits and Memorial on Jurisdiction, submitted on 31 July 2015.|
|Respondent's Rejoinder||Respondent's Rejoinder on the Merits and Reply on Jurisdiction, submitted on 1 March 2016. NOTE: the numbers of paragraphs between the Spanish (original) version of Respondent's Rejoinder and the English translation differ. For purposes of the English version of the Award, the Tribunal uses the paragraphs of the English (translation) of the Respondent's Rejoinder.|
|RREEF||RREEF Infrastructure (G.P.) Limited.|
|Servert Report||Expert report of Servert Engineering: "Andasol 1 and 2 CSP plants. Lifetime analysis and gas use in CSP plants with storage", dated 28 February 2016, prepared by the Engineer Dr. Jorge Servert.|
|SES||Spanish Electrical System.|
|Spain||The Kingdom of Spain.|
|Special Payment||Payment granted to RE producers under the New Regime.|
|Special Regime||Regulatory regime applicable to electricity production facilities of less than 50 MW which generated electricity from nonconsumable renewable energy resources.|
|Tariff Deficit||The shortfall of revenues arising in the SES when the income of the system is smaller than its costs.|
|TFEU||Treaty on the Functioning of the European Union.|
|Treaty||Energy Charter Treaty.|
|TVPEE||Tax on the value of the production of electrical energy, introduced by Law 15/2012.|
|USD||United States Dollars.|
|VCLT||Vienna Convention on the Law of Treaties of 23 May 1969.|
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Dr. Eduardo Zuleta Jaramillo President
Prof. Francisco Orrego Vicuña Co-Arbitrator
Mr. J. Christopher Thomas QC Co-Arbitrator
Ms. Natalí Sequeira Secretary of the Tribunal
For the Claimants:
Ms. Judith Gill QC Allen & Overy LLP
Mr. Jeffrey Sullivan Allen & Overy LLP (Now Gibson Dunn &
Ms. Marie Stoyanov Allen & Overy LLP
Ms. Naomi Briercliffe Allen & Overy LLP
Mr. Tomasz Hara Allen & Overy LLP
Ms. Stephanie Hawes Allen & Overy LLP
Mr. Jack Busby Allen & Overy LLP
Ms. Karolina Latasz Allen & Overy LLP
Mr. Stéphane Ifker Antin Infrastructure Partners
Mr. Ashkan Karimi Antin Infrastructure Partners
Mr. Mark Crosbie Antin Infrastructure Partners
Mr. Mauricio Bolaña Antin Infrastructure Partners
Mr. Richard Caldwell The Brattle Group
Mr. Carlos Lapuerta The Brattle Group
Mr. José Antonio García The Brattle Group
Mr. John (Jack) Stirzaker The Brattle Group
Dr. Thomas R. Mancini TRMancini Solar Consulting, LLC
For the Respondent:
Mr. Diego Santacruz Descartin Ministry of Justice of the Government of Spain
Mr. Javier Torres Gella Ministry of Justice of the Government of Spain
Mr. Yago Fernández Badía Ministry of Justice of the Government of Spain
Mr. Antolín Fernández Antuña Ministry of Justice of the Government of Spain
Ms. Amaia Rivas Kortazar Ministry of Justice of the Government of Spain
Ms. Elena Oñoro Sanz Ministry of Justice of the Government of Spain
Mr. Arturo Fernández IDAE
Mr. Alfonso Olivas IDAE
Ms. Raquel Vázquez IDAE
Mr. Carlos Montoya IDAE
Mr. Eduardo Pérez BDO
Mr. Francisco Javier Espel BDO
Mr. David Mitchell BDO
Mr. Manuel A. Vargas BDO
Ms. Susan Blower BDO
Dr. Jorge Servert BDO
Ms. Emily Choo2 NUS Centre for International Law Practice Fellow
Mr. Trevor McGowan The Court Reporter
Mr. Leandro Iezzi D-R Esteno
Ms. Luciana Sosa D-R Esteno
Mr. Jesús Getan Bornn Independent
Mr. Juan María Burdiel Perez Independent
Ms. Amalia Thaler Independent
Mr. Mark Crosbie Antin Infrastructure Partners
Mr. Mauricio Bolaña Antin Infrastructure Partners
Mr. Carlos Montoya IDAE
Dr. Thomas R. Mancini TR Mancini Solar Consulting, LLC
Mr. Richard Caldwell The Brattle Group
Mr. Carlos Lapuerta The Brattle Group
Mr. José Antonio García The Brattle Group
Mr. David Mitchell BDO
Mr. Eduardo Pérez BDO
Mr. Francisco Javier Espel BDO
On 24 November 2016, the Respondent submitted a letter dated 18 November 2016, seeking authorization to add an additional legal authority to the record (namely, the award in Isolux Netherlands B.V. v. Kingdom of Spain (SCC Case V2013/153) dated 17 July 2016 ("Isolux v. Spain"). On 25 November 2016 and 2 December 2016, the Claimants submitted observations on the Respondent's request. The Respondent submitted further observations on 29 November 2016 and 7 December 2016.
"an energy policy based on the gradual liberalisation of the market compatible with the achievement of other objectives which also belong to it, such as the improvement of energy efficiency, reduced consumption and environmental protection. The special electricity generation regime, the demand management programmes and, above all, the promotion of renewable energy improve the way in which it fits into our legal system."
"1. Electrical energy production shall be approved for operation under the special regime in the following cases, and when said activity is carried out in power plants with an installed power capacity_that does not exceed 50MW: [...]
b) When used as a primary energy source, any of t he no -consumable renewable energy, biomass or any kind of biofuel, providing the owner does not operate electricity production activities under the ordinary regime. […]
2. Energy production under the special regime shall be governed by its specific guidelines and, in matters not covered by them, general applicable electrical production rules shall apply."7
"In order to establish premium quotas the following factors shall be considered: the tension level of delivery to the grid, the actual contribution to the improvement of the environment, to the saving on primary energy and energy efficiency as well as the costs incurred from investment, in order that reasonable rate of return may be established related to the cost in assets on the capital market."
"The aim of this Royal Decree is to increase remuneration for facilities using newer technologies, such as biomass and solar-thermal, in order to comply with targets outlined under the [20052010 Plan] and those agreed upon between Spain and the European Union. As these renewable energy technologies are developed, renewable energy shall cover 12% of Spain's energy needs by 2010. [...] With regard to technologies in need of a boost in view of their limited development, such as biogas or solar-thermoelectric, profitability shall rise to 8% for facilities that choose to supply distributors and between 7% and 11% return for those participating in the wholesale market. Tariffs shall be reviewed every 4 years, taking into account compliance with the established targets. Such a revision shall allow for adjustments to be made to the tariff in virtue of new costs and the level of compliance with the targets. Future tariff revisions shall not be applied to existing facilities. This guarantees legal certainty for the electricity producer and stability for the sector, thereby favouring development. […]"40
(a) Article 14 provided that definitive registration with the Administrative Registry of Production Facilities under the Special Regime (the "RAIPRE" for its acronym in Spanish), administered by the Ministry, was a necessary condition for a facility to be subject to the Special Regime benefits under RD 661/2007;
(b) Article 17(e) granted priority of access and priority of dispatch to the electric grid to RE producers over conventional energy producers, under the terms set forth in Annex XI of RD 661/2007;
(c) Article 2(1)(b) allowed RE production facilities subject to the Special Regime to use fuels for generation of electricity, insofar as the electricity produced by such fuels did not exceed 12% of the total production, if the facility sold energy through the Fixed Tariff option, or 15%, if the facility sold energy through the Premium option;
(d) Article 22 provided that the tariffs and premiums established in RD 661/2007 could be revised if Spain reached certain volumes of RE installed capacity, but such revision would not be applicable to those facilities already registered with the RAIPRE prior to such date;
(e) Article 36 established fixed tariffs and premiums that would be applicable for the entire operational lifetime of each facility;
(f) Article 44(1) provided that tariffs and premiums and the upper and lower limits would be adjusted by reference to fuel price indexes and to the Consumer Price Index ("CPI");44
"During the year 2010, on sight of the results of the monitoring reports on the degree of fulfilment of the Renewable Energies Plan (PER) 2005-2010, and of the Energy Efficiency and Savings Strategy in Spain (E4), together with such new tar-gets as may be included in the subsequent Renewable Energies Plan 2011-2020, there shall be a review of the tariffs, premiums, supplements and lower and upper limits defined in this Royal Decree with regard to the costs associated with each of these technologies, the degree of participation of the special regime in covering the demand and its impact upon the technical and economic management of the system, and a reasonable rate of profitability shall always be guaranteed with reference to the cost of money in the capital markets. Subsequently a further re- view shall be performed every four years, maintaining the same criteria as previously. The revisions to the regulated tariff and the upper and lower limits indicated in this paragraph shall not affect facilities for which the deed of commissioning shall have been granted prior to 1 January of the second year following the year in which the revision shall have been performed."45
(a) The CSP plants waived access to the Premium option during their first year of operations.
(b) Qualifying CSP plants accepted the delaying of the date of commencing operations.
(c) The number of hours with a right to compensation above market prices would be limited, in accordance with the provisions of the 2005-2010 Plan regarding calculation of the facilities' profitability.
"For solar thermoelectric technology facilities that fall under RD 661/2007 […] revisions of tariffs, premiums and upper and lower limits referred to by article 44.3 of the aforementioned Royal Decree, shall not affect facilities registered definitively in the [RAIPRE] as of 7 May 2009, nor those that were to have been registered in the [Pre-Assignment Registry] under the fourth transitional provision of RDL 6/2009 [...], and that meet the obligation envisaged in its article 4.8, extended until 31 December 2013 for those facilities associated to phase 4 envisaged in the Agreement of the Council of Ministers of 13 November 2009."
"CSP technology was discussed. A more detailed presentation will be made in subsequent IC. The technology emerged commercially in the 1980s in California but few plants were built post 1990s. This was because there is a high investment cost which requires state support in the form of subsidies or tax breaks. In the 1990s, as a result of low gas prices, there was a focus on building CCGTs to satisfy electricity demands. CSP development has restarted in Spain and the US as a result of government support schemes.
Spanish regulation for renewables has recently changed, in particular affecting solar PV. The CSP sector is dominated by large Spanish contractors and their association has negotiated changes to regulation which did not have a significant negative impact on the projects (i.e. fixed tariff for 2011 and limitation of hours of production). Spain is a world leader in CSP and Spanish contractors are involved in exporting their technology to many countries abroad. Therefore it is expected that CSP will be more sheltered from regulatory change."81
"If the zero tariff deficit target by end of 2012 is postponed, it will open up the opportunity to more deficit generation. Considering the Government behaviour, it is likely that future changes might be implemented if considered needed. RDL 14/2010 is aimed at tackling the lack of funds in the electricity system, reducing the revenue of renewable generators as well as introducing additional revenue sources (i.e., grid tolls). We feel that the Government is in a position to continue with the same energy policy, if considered a requirement, including implementation of further reductions in remuneration to renewables and non-renewable technologies."89
"Spain has a tariff deficit as a result of regulated electricity prices not reflecting the actual cost of producing electricity. This deficit has been accumulating over the past few years. The government has a plan to reduce the tariff deficit to zero by 2013. The regulatory changes in renewables last year were in part motivated by this desire to reduce the tariff deficit. The project team will carry out a more in depth analysis of the tariff deficit and its potential impact on CSP plants during the next phase of the process.
The CSP sector has not been significantly affected by recent regulatory changes (see slides 14 and 15). A key reason for this is the involvement of large Spanish corporates in the sector and their lobby power with the government. Additionally, Spain is a world leader in CSP and it has become a very relevant export industry.
Further comfort on the future stability of regulation would be obtained from the involvement of major Spanish utilities. Today the Spanish CSP market is dominated by large contractors, although some like Acciona could be considered a utility. Iberdrola owns an operational plant and one that is pre-registered. The project team will find out if they have further projects in the pipeline, underpinning their support to the sector."102
"4. Additionally, subject to the terms that the Council of Ministers might adopt pursuant to Royal Decrees, in relation to the remuneration for the generation of electricity calculated according to market price, installations may receive a specific remuneration [the Special Payment] composed of an amount per unit of installed capacity. Such amount shall cover, as appropriate, the investment costs of a standard installation that cannot be recovered through the sale of energy, as well as an amount for the operation of the installation to cover, as the case may be, the difference between exploitation costs and the revenues obtained from the participation of such a standard installation in the market.
For the calculation of that specific remuneration, the following elements shall be considered, based on the installation's regulatory useful life and by reference to the activities carried out by an efficient and well administered business:
a) The standard revenues for the sale of the generated energy valued at market price of production;
b) The standard exploitation costs;.
c) The standard value of the initial investment. [...]
This remuneration regime shall not exceed the minimum required level to cover the costs that are necessary for installations to compete on an equal footing with the rest of the technologies in the market in order to allow those installations to obtain a reasonable return, by reference to the standard installation […]
Such reasonable return will be based on, before taxes, the average returns in the secondary market of the State's ten-year bonds plus the adequate differential.
The parameters of the remuneration regime can be revised every six years."149
"537. For all of the foregoing reasons, the Claimants respectfully request that the Tribunal enter an award in their favour and against the Kingdom of Spain as follows:
(a) DECLARING that Spain has breached Article 10(1) of the ECT; and
(b) ORDERING that Spain:
(i) provide full restitution to the Claimants by re-establishing the situation which existed prior to Spain's breaches of the ECT, together with compensation for all losses suffered before restitution; or
(ii) pay the Claimants compensation for all losses suffered as a result of Spain's breaches of the ECT; and
in any event:
(iii) pay the Claimants pre-award interest at a rate of 2.07% compounded monthly; and
(iv) pay post-award interest, compounded monthly at a rate to be determined by the Tribunal on the amounts awarded until full payment thereof; and
(v) pay the Claimants the costs of this arbitration on a full-indemnity basis, including all expenses that the Claimants have incurred or will incur in respect of the fees and expenses of the arbitrators, ICSID, legal counsel, experts and consultants; and
(vi) any such other and further relief that the Tribunal shall deem just and proper."162
"a) Declare its lacks of jurisdiction to hear the claims of the Claimants, or if applicable their inadmissibility, in accordance with what is set forth in section III of this Document, referring to Jurisdictional Objections;
b) Secondarily, for the case that the Arbitral Tribunal decides that it has jurisdiction to hear this dispute, that it dismiss all the claims of the Claimants on the merits because the Kingdom of Spain has not breached in any way the ECT, in accordance with what is stated in paragraphs (A) and (B) of section IV of this Document, on the substance of the matter;
c) Secondarily, that all rescionary claims of the Claimants are dismissed inasmuch as the latter are not entitled to compensation in accordance with what is set forth in paragraph (C) of section IV of this document; and
d) Sentence the Claimants to pay all costs and expenses derived from this arbitration, including ICSID administrative expenses, arbitrators' fees, and the fees of the legal representatives of the Kingdom of Spain, their experts and advisors, as well as any other cost or expense that has been incurred, all of this including a reasonable rate of interest from the date on which these costs are incurred and the date of their actual payment."164
(a) The Tribunal lacks jurisdiction ratione personae : since the Claimants are nationals of EU Member States and the Respondent is a EU Member State, the Claimants are not investors "of another Contracting Party" under Article 26(1) of the ECT. Additionally, Luxembourg and the Netherlands, as well as Spain, were already members of the EU at the time they ratified the ECT; therefore, they could not "contract between them obligations within the internal Energy Market, harmonised by the EU."168
(b) The Tribunal lacks jurisdiction ratione materiae since the Claimants do not own or control, directly or indirectly, the assets identified by them as their investment, and therefore the only protected investment under ECT Article 1(6) is the shareholding that Antin Termosolar owns in the Andasol Companies and the loans granted by it to the Andasol Companies.
(c) The Tribunal lacks jurisdiction ratione materiae to hear any claims related to the TVPEE, given that Spain did not grant its consent to arbitrate disputes regarding alleged violations of ECT Article 10(1) arising from tax measures.
(d) The Tribunal lacks jurisdiction to hear any claims related to Law 24/2013, RD 413/2014 and Ministerial Order IET/1045/2014, since the Claimants did not comply with the cooling-off period set forth in ECT Article 26.
B. WHETHER THE TRIBUNAL HAS JURISDICTION OVER THE CLAIMS SUBMITTED BY THE CLAIMANTS REGARDING THE "INTERESTS" IDENTIFIED AS PROTECTED INVESTMENTS UNDER THE TREATY
(a) that Antin Termosolar may bring a claim for any deterioration in the value of its shares as a result of the Disputed Measures or for the loss of value of the receivables from loans granted by Antin Termosolar to the Andasol Companies;
(b) that the Interests for which the Claimants advance their claims in this arbitration fall under the non-exhaustive categories of assets listed in Article 1(6) of the ECT, or that these qualify as investments under Article 25 of the ICSID Convention; and
(c) that the investment is "associated with an Economic Activity in the Energy Sector."318
"(6) "Investment" means every kind of asset, owned or controlled directly or indirectly by an Investor and includes:
(a) tangible and intangible, and movable and immovable, property, and any property rights such as leases, mortgages, liens, and pledges;
(b) a company or business enterprise, or shares, stock, or other forms of equity participation in a company or business enterprise, and bonds and other debt of a company or business enterprise;
(c) claims to money and claims to performance pursuant to contract having an economic value and associated with an Investment;
(d) Intellectual Property;
(f) any right conferred by law or contract or by virtue of any licences and permits granted pursuant to law to undertake any Economic Activity in the Energy Sector."
(1) Except as otherwise provided in this Article, nothing in this Treaty shall create rights or impose obligations with respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of the Treaty, this Article shall prevail to the extent of the inconsistency."
"(i) any provision relating to taxes of the domestic law of the Contracting Party or of a political subdivision thereof or a local authority therein; and (ii) any provision relating to taxes of any convention for the avoidance of double taxation or of any other international agreement or arrangement by which the Contracting Party is bound."406
"[…] Article 21 of the ECT specifically excludes from the scope of the ECT's protections taxation measures of a Contracting State, with certain exceptions […]."409
"There is no right, however well established, which could not, in some circumstances, be refused recognition on the ground that it has been abused."420