submitted with the ICSID Secretariat an Application for Leave to Intervene as a Non-Disputing Party dated 21 February 2020 (the "Application") pursuant to Rule 37(2) of the ICSID Arbitration Rules (the "Arbitration Rules").
(a) Article 26 of the Energy Charter Treaty ["ECT"] does not apply " intra-EU," so that the Arbitral Tribunal lacked jurisdiction and committed an error leading to annulment when confirming its jurisdiction to hear the case; and
(b) Union law on State Aid forms part of the applicable law before the Arbitral Tribunal, which is of relevance in particular for the interpretation and application of the substantive investment provisions of the Energy Charter Treaty, and precludes in the present case the award of damages against Spain; by ignoring and hence not applying them, the Arbitral Tribunal failed to apply the applicable law, which must lead to the annulment of the contested award;
(c) Union law on State Aid requires a stay of enforcement of the Award, because Spain is under an obligation under EU law, and hence of international law applicable to the parties, not to pay the contested award.
(a) rejects the EC's Application;
(b) rejects the EC's alternative request that it be invited as an expert witness; and
(c) reserves the issue of costs on this Application to a further order or decision.
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