a. the Applicant's annulment application is well-founded and not frivolous or dilatory;
b. there would be no prejudice or harm caused to the Claimants if the stay is continued; and
c. the Applicant would be seriously prejudiced if a stay is not granted.
that it is well-grounded.12 The Applicant contends that:
a. the need for the Tribunal to rectify the Award by 11 million euros is evidence that the Award is flawed;13
b. the Tribunal acted in manifest excess of its power by exceeding its jurisdiction under the Energy Charter Treaty ("ECT") and EU law, failing to apply the proper law, and acting outside the Parties' consent to arbitration;14
c. the Tribunal, in preventing the Applicant from introducing into the record the European Commission's ("EC") Decision on State Aid issued in November 2017 and rejecting the intervention of the EC as amicus curiae in the Arbitration, failed to allow the Applicant to fully present its case, thus departing from a fundamental rule of procedure;15
d. the Award fails to state the reason for the Tribunal's disregard for EU law and the calculations for the damages are unreasonable and incoherent.16
"The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request." (emphasis added)
"Stay of enforcement during the annulment proceeding is by no way automatic, quite to the contrary, a stay is contingent upon the existence of relevant circumstances which must be proven by the Applicant."109
"In view of th[e] exceptional nature [of the stay], the Committee does not believe it is possible to admit the existence of a presumption in favor of maintaining the stay of the enforcement of the award. In the opinion of the Committee, the practice of most committees that have decided in favor of the continuation of the stay, to which Venezuela refers, is not enough to prove the existence of such a presumption. Even less can it be said that the stay is 'almost automatic', as stated the Committee in the case Pey Casado and as now proposed by Venezuela. This position has been rejected with convincing arguments by several committees and in recent years some committees have ordered the lifting of the stay…" (emphasis added)110
"The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention… Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of the Convention."
"The actions taken by the 'Contracting Parties', who created the ICSID system must lead us to the conclusion that the binding nature of the award is the rule, whereas its annulment is the exception. The ICSID system is built on the premise that the awards rendered by ICSID tribunals settle in a definite manner the issues submitted to their consideration, and that only under exceptional and highly limited circumstances may their annulment be declared.
The inevitable consequence of the foregoing reasoning is that, despite an application for annulment, awards must be enforced and only in very specific cases where the circumstances so require, may enforcement be stayed by the corresponding committee." (emphasis added)111
a. prejudice suffered by the Applicant if the stay is not granted;
b. prejudice suffered by the Claimants if a stay is granted; and
c. merits of the Applicant's annulment application.
"If the argument is that seeking clearance would create a contradiction between the ICSID Convention Rules and EU law, this issue, together with the need to request clearance from the EU, has been heavily debated by the Parties. The Committee considers that Spain has not shown that the manner through which or the process that will be followed to comply with its obligation contained in Article 53(1) of the ICSID Convention would be affected by the fact that the request for stay is granted or denied now or when the final ruling of the Committee is issued. Thus, the Committee denies this ground for [the] request to stay the enforcement of the Award." (emphasis added)120