In its Request for Bifurcation, the Respondent raises seven preliminary objections. The Tribunal's allegedly lacks jurisdiction: (a) because the Claimants did not invest in Spain within the meaning of the Energy Charter Treaty ("ECT"); (b) because the true Claimants are of Spanish nationality and thus not protected under the ECT; (c) due to the Claimants' abuse of process; (d) due to the Respondent's denial of benefits to the Claimants under Article 17 of the ECT; (e) due to the "intra-EU" nature of the dispute; (f) due to the failure to fulfil the pre-requisites for arbitration set forth in Article 26 of the ECT; and (g) due to the lack of consent to arbitration of tax measures, including the Tax on the Value of Production of Electrical Energy ("TVPEE") established by Act 15/2012 of 27 December 2012 on Tax Measures for Energy Sustainability ("Act 15/2012"). These objections are summarized in section 1 below.
First, among the reasons to consider this objection as frivolous, the Claimants mention that neither Article 1(7) of the ECT nor Article 25(1)(b) of the ICSID Convention require or allow the Tribunal to pierce a company's corporate veil when ruling on jurisdiction, and previous tribunals have held that the corporate veil should not be pierced except in exceptional circumstances such as fraud, which is inapposite in this case.45
Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.
Each Contracting Party reserves the right to deny the advantages of this Part to:
(1) a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organised; or
(2) an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party:
(a) does not maintain a diplomatic relationship; or
(b) adopts or maintains measures that:
(i) prohibit transactions with Investors of that state; or
(ii) would be violated or circumvented if the benefits of this Part were accorded to Investors of that state or to their Investments.
a. The Respondent's Request for Bifurcation is denied; and
b. The procedural calendar set forth in Option 2.2 of Procedural Order No. 2 is now in effect, and therefore the Counter-Memorial on the Merits and Memorial on Jurisdiction is due on 6 November 2020.
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