a. the Application is well-founded, made in good faith, and is not dilatory;
b. Spain's position would be prejudiced if the stay is not continued; and
c. continuing the stay would not prejudice or harm Cube and Demeter.
a. "[…] the Tribunal went beyond its jurisdiction by failing to apply the proper law with regard to the intra-EU objection and wrongly interpreting Article 26 of the Energy Charter Treaty […] The Tribunal also failed to apply the proper law by completely disregarding European Union Law when assessing the facts and merits of the case. Finally, the wrongful application of the proper law by the Tribunal determined that the Award infringed the most basic principles contained in the European Commission's State Aid Decision on the Spanish renewable energy support scheme;"18
b. "[…] the Award incurred in a serious departure from a fundamental rule of procedure and thus prevented the Kingdom of Spain of its right to fully present its case, precisely by denying Spain the introduction into the record of the Declaration of the Representatives of the Governments of the Member States of 15 January 2019, by denying the European Commission's intervention in the arbitral proceeding, by breaching the most basic rules regarding evidence and the Applicant's right to be heard and by providing the Applicant with a treatment which failed to be impartial and equal;"19 and
c. "[…] the Award failed to state the reasons on which it is based by providing contradictory findings in relation to stabilization commitments and the application of European Union Law."20
Spain further points out that all of the reasons it now provides as weighing in favour of the stay have also been used by United States courts to deny enforcement of awards against Spain that are still pending annulment.69 Specifically, Spain cites the decisions of the United States District Court for the District of Columbia in relation to the Antin award and the award in Novenergia II Energy & Environment (SCA) v. The Kingdom of Spain.70
In support of its decision to stay enforcement in both cases, the U.S. court – like Spain does now – cited Spain's entitlement to annulment under the ICSID Convention,71 the efficiency and fairness of staying the enforcement proceedings until resolution of the annulment is reached,72 the conservation of the parties' resources,73 the hardship that Spain would face if the award was prematurely enforced,74 the good faith of Spain's annulment proceedings,75 and the burden on Spain if it were forced to litigate to recover assets.76
Cube and Demeter state that because there is no presumption in favour of the stay of enforcement of the Award, Spain bears the burden of establishing that "sufficiently compelling circumstances require continuation of the stay."113 That Spain bears the burden of proof is established by Article 54(4) of the ICSID Arbitration Rules and confirmed by arbitral case law.114
In addition, Cube and Demeter point out that statistics actually weigh in favour of rejecting the Request as six of the eight publicly available decisions since 2016 rejected the request to continue the stay and two additional ones were granted but with conditions.118 Further, Cube and Demeter state that in light of the fact that more than half of annulment cases have not been accompanied by requests for stays of enforcement, "the more informative statistic" is that the majority of annulment cases have not issued stays of enforcement.119
the payment of interest should not be considered a sufficient remedy for any prejudice caused by a delay in the Award's enforcement. … Given that the prejudice complained of by the Claimants directly relates to difficulties in enforcement (and not the loss of use of the funds under the Award), the payment of interest is not an adequate remedy.146
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.
(1) The party applying for the interpretation, revision or annulment of an award may in its application, and either party may at any time before the final disposition of the application, request a stay in the enforcement of part or all of the award to which the application relates. The Tribunal or Committee shall give priority to the consideration of such a request.
(2) If an application for the revision or annulment of an award contains a request for a stay of its enforcement, the Secretary-General shall, together with the notice of registration, inform both parties of the provisional stay of the award. As soon as the Tribunal or Committee is constituted it shall, if either party requests, rule within 30 days on whether such stay should be continued; unless it decides to continue the stay, it shall automatically be terminated.
(3) If a stay of enforcement has been granted pursuant to paragraph (1) or continued pursuant to paragraph (2), the Tribunal or Committee may at any time modify or terminate the stay at the request of either party. All stays shall automatically terminate on the date on which a final decision is rendered on the application, except that a Committee granting the partial annulment of an award may order the temporary stay of enforcement of the unannulled portion in order to give either party an opportunity to request any new Tribunal constituted pursuant to Article 52(6) of the Convention to grant a stay pursuant to Rule 55(3).
(4) A request pursuant to paragraph (1), (2) (second sentence) or (3) [for a stay or its modification or termination] shall specify the circumstances that require the stay or its modification or termination. A request shall only be granted after the Tribunal or Committee has given each party an opportunity of presenting its observations.
(5) The Secretary-General shall promptly notify both parties of the stay of enforcement of any award and of the modification or termination of such a stay, which shall become effective on the date on which he dispatches such notification.
[a] "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."238
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