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Decision on Jurisdiction and Admissibility

Table of Selected Abbreviations/Defined Terms

Achmea Judgement Judgment rendered by the Court of Justice of the European Union in Slovak Republic v. Achmea BV (Case No. C-284/16) dated 6 March 2018
Arbitration Rules ICSID Rules of Procedure for Arbitration Proceedings 2006
C-[#] Claimants’ Exhibit
Cl. Mem. Claimants’ Memorial on the Merits dated 28 July 2016
Cl. PHB Claimants’ Post-Hearing Brief dated 19 September 2019
Cl. Rej. Claimants’ Rejoinder on Jurisdiction dated 23 July 2017
Cl. Reply Claimants’ Reply on the Merits and Counter-Memorial on Jurisdiction dated 26 April 2017
CL-[#] Claimants’ Legal Authority
CPI Consumer Price Index
DSG Claimants The first 73 Claimants listed at paragraph 2 of this Decision
DSG claims The claims of the DSG Claimants
DSG GmbH DSG Deutsche Solargesellschaft GmbH
ECT Energy Charter Treaty, 17 December 1994
EU European Union
EU Brief Amicus curiae brief filed by the European Commission, 27 June 2016
First Proposal Respondent’s Proposal to Disqualify Mr. Gary Born dated 13 February 2018
Hearing Hearing on jurisdiction and merits held on 3 June to 7 June 2019
ICSID Convention Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965
ICSID or the Centre International Centre for Settlement of Investment Disputes
Kruck Beteiligungs GmbH Later became DSG Spanien Verwaltungs GmbH
Margarit Complementary Report Jaume Margarit, Complementary Report on Specific Aspects of the Regulatory Framework for the Promotion of Renewable Energy in Spain, 18 April 2017
Margarit Report Jaume Margarit, Report on the Regulatory Framework to Promote Renewal Energy before RDL 9/2013 and its Determining Factors, 7 July 2016
NDP Non-Disputing Party
NRR New regulatory regime
PV Photovoltaic energy
R-[#] Respondent's Exhibit
RD Royal Decree
RDL Royal Decree-Law
REIO Regional Economic Integration Organization
Resp. C-Mem. Respondent's Counter-Memorial on the Merits and Memorial on Jurisdiction dated 31 October 2016
Resp. PHB Respondent's Post-Hearing Brief dated 19 September 2019
Resp. Rej. Respondent's Rejoinder on the Merits and Reply on Jurisdiction dated 27 June 2017
RL-[#] Respondent's Legal Authority
Second Proposal Respondent's Request for Disqualification of Presiding Arbitrator Professor Vaughan Lowe submitted on 16 April 2019
SPV Special Purpose Vehicle
TFEU Treaty on the Functioning of the European Union published in the Official Journal of the European Union on 26 October 2012
Tr. Day [#] [Speaker(s)] [page:line] Transcript of the Hearing
Tribunal Arbitral tribunal constituted on 19 January 2016
TS Claimants The last 43 Claimants listed at paragraph 2 of this Decision
TS claims The claims of the TS Claimants
TVPEE Tax on the Production Value of Electric Power (created by Law 15/2012 of 27 December 2012, on fiscal measures for energy sustainability)
VCLT Vienna Convention on the Law of Treaties, 23 May 1969

I. INTRODUCTION AND PARTIES

1.

This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Energy Charter Treaty, which entered into force on 16 April 1998 (the "ECT") and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").

2.
The names of the Claimants, as provided by counsel, are as follows:

1. Solar Andaluz 1 GmbH & Co. KG
2. Solar Andaluz 2 GmbH & Co. KG
3.Solar Andaluz 3 GmbH & Co. KG
4.Solar Andaluz 4 GmbH & Co. KG
5.Solar Andaluz 5 GmbH & Co. KG
6.Solar Andaluz 6 GmbH & Co. KG
7.Solar Andaluz 7 GmbH & Co. KG
8.Solar Andaluz 8 GmbH & Co. KG
9.Solar Andaluz 9 GmbH & Co. KG
10.Solar Andaluz 10 GmbH & Co. KG
11.Solar Andaluz 11 GmbH & Co. KG
12.Solar Andaluz 12 GmbH & Co. KG
13.Solar Andaluz 13 GmbH & Co. KG
14.Solar Andaluz 14 GmbH & Co. KG
15.Solar Andaluz 15 GmbH & Co. KG
16.Solar Andaluz 16 GmbH & Co. KG
17.Solar Andaluz 17 GmbH & Co. KG
18.Solar Andaluz 18 GmbH & Co. KG
19.Solar Andaluz 19 GmbH & Co. KG
20.Solar Andaluz 20 GmbH & Co. KG
21.Solarpark Calasparra 251 GmbH & Co. KG
22.Solarpark Calasparra 252 GmbH & Co. KG
23.Solarpark Calasparra 253 GmbH & Co. KG
24.Solarpark Calasparra 254 GmbH & Co. KG
25.Solarpark Calasparra 255 GmbH & Co. KG
26.Solarpark Calasparra 256 GmbH & Co. KG
27.Solarpark Calasparra 257 GmbH & Co. KG
28.Solarpark Calasparra 258 GmbH & Co. KG
29.Solarpark Calasparra 259 GmbH & Co. KG
30.Solarpark Calasparra 260 GmbH & Co. KG
31. Solarpark Calasparra 261 GmbH & Co. KG
32. Solarpark Calasparra 262 GmbH & Co. KG
33. Solarpark Calasparra 263 GmbH & Co. KG
34. Solarpark Calasparra 264 GmbH & Co. KG
35. Solarpark Calasparra 265 GmbH & Co. KG
36. Solarpark Tordesillas 401 GmbH & Co. KG
37. Solarpark Tordesillas 402 GmbH & Co. KG
38. Solarpark Tordesillas 403 GmbH & Co. KG
39. Solarpark Tordesillas 404 GmbH & Co. KG
40. Solarpark Tordesillas 405 GmbH & Co. KG
41. Solarpark Tordesillas 406 GmbH & Co. KG
42. Solarpark Tordesillas 407 GmbH & Co. KG
43. Solarpark Tordesillas 408 GmbH & Co. KG
44. Solarpark Tordesillas 409 GmbH & Co. KG
45. Solarpark Tordesillas 410 GmbH & Co. KG
46. Solarpark Tordesillas 411 GmbH & Co. KG
47. Solarpark Tordesillas 412 GmbH & Co. KG
48. Solarpark Tordesillas 413 GmbH & Co. KG
49. Solarpark Tordesillas 414 GmbH & Co. KG
50. Solarpark Tordesillas 415 GmbH & Co. KG
51. Solarpark Tordesillas 416 GmbH & Co. KG
52. Solarpark Tordesillas 417 GmbH & Co. KG
53. Solarpark Tordesillas 418 GmbH & Co. KG
54. Solarpark Tordesillas 419 GmbH & Co. KG
55. Solarpark Tordesillas 420 GmbH & Co. KG
56. Solarpark Tordesillas 421 GmbH & Co. KG
57. Solarpark Tordesillas 422 GmbH & Co. KG
58. Solarpark Tordesillas 423 GmbH & Co. KG
59.Solarpark Tordesillas 424 GmbH & Co. KG
60.Solarpark Tordesillas 425 GmbH & Co. KG
61.Solarpark Tordesillas 426 GmbH & Co. KG
62.Solarpark Tordesillas 427 GmbH & Co. KG
63.Solarpark Tordesillas 428 GmbH & Co. KG
64.Solarpark Tordesillas 429 GmbH & Co. KG
65.Solarpark Tordesillas 430 GmbH & Co. KG
66.DSG Deutsche Solargesellschaft mbH
67.DSG Spanien Verwaltungs GmbH1
68.Mr. Mathias Kruck
69.Mr. Joachim Kruck
70.Mr. Peter Flachsmann
71.Mr. Ralf Hofmann
72.Mr. Rolf Schumm
73.Mr. Frank Schumm
74.TS Abuzaderas 1 GmbH
75.TS Abuzaderas 2 GmbH
76.TS Abuzaderas 3 GmbH
77.TS Abuzaderas 4 GmbH
78.TS Abuzaderas 5 GmbH
79.TS Abuzaderas 6 GmbH
80.TS Abuzaderas 7 GmbH
81.TS Abuzaderas 8 GmbH
82.TS Abuzaderas 9 GmbH
83.TS Abuzaderas 10 GmbH
84.TS Abuzaderas 11 GmbH
85.TS Abuzaderas 12 GmbH
86.TS Abuzaderas 13 GmbH
87.TS Abuzaderas 14 GmbH
88.TS Abuzaderas 15 GmbH
89.TS Abuzaderas 16 GmbH
90.TS Abuzaderas 17 GmbH
91.TS Abuzaderas 18 GmbH
92.TS Abuzaderas 19 GmbH
93.TS Abuzaderas 20 GmbH
94.TS Abuzaderas 21 GmbH
95.TS Abuzaderas 22 GmbH
96.TS Abuzaderas 23 GmbH
97.TS Abuzaderas 24 GmbH
98.TS Abuzaderas 25 GmbH
99.TS Abuzaderas 26 GmbH
100.TS Abuzaderas 27 GmbH
101.TS Abuzaderas 28 GmbH
102.TS Abuzaderas 29 GmbH
103.TS Abuzaderas 30 GmbH
104.TS Avila eins GmbH
105.TRC Energy GmbH
106.TS Cuenca zwei GmbH
107.WBG GmbH
108.Sunburn Verwaltungs GmbH
109.TS Villalba GmbH
110.Tauber-Solar Sierra GmbH
111.ZKS GmbH
112.TS Cuenca 20 GmbH
113.TS Valtou GmbH
114.TS Cuenca 40 GmbH
115.Mr. Karsten Reiss
116.Mr. Jurgen Reiss2

3.
Further details on the nationality and legal nature of the Claimants are included below under Section V.A. It is convenient to consider the Claimants as constituting two distinct groups of investors. One is the group of 73 "DSG Claimants", which invested in three photovoltaic energy ("PV") projects in Spain registered under Spanish Royal Decree ("RD") 661/2007, and which share common developers and management.3 The projects are the Andaluz, Calasparra and Tordesillas projects, and the corresponding Claimants are numbered 1-20, 21-35, and 36-65 in the list in the previous paragraph. Also in that group are Claimants 66-73 in the above list: Kruck Beteiligungs GmbH (later renamed DSG Spanien Verwaltungs GmbH); DSG Deutsche Solargesellschaft mbH; Mr. Mathias Kruck; Mr. Joachim Kruck; Mr. Peter Flachsmann; Mr. Ralf Hofmann; Mr. Rolf Schumm; and Mr. Frank Schumm. The second group consists of the 43 "TS Claimants", which invested in ten other PV projects in Spain under RD 661/2007 and RD 1578/2008. They are Claimants 115, Mr. Karsten Reiss, and 116, Mr. Jürgen Reiss, and the companies listed as Claimants 76-114 in the list above. There are 116 Claimants in total.
4.
The Respondent is the Kingdom of Spain, hereinafter referred to as "Spain" or the "Respondent."
5.
The Claimants and the Respondent are collectively referred to as the "Parties." The Parties' representatives and their addresses are listed above on page (i).
6.
The dispute relates to the Claimants' alleged investment in a number of photovoltaic power facilities (solar energy) in Spain. According to the Claimants, between 1994 and 2008, Spain enacted renewable energy incentive legislation to attract foreign investment. The Claimants contend, inter alia, that they invested in Spain in reliance of this legislation starting in 2006. The Claimants further allege that by 2010, Spain began introducing regulatory changes that impacted the applicable incentives and financial regime under which they had invested, thereby affecting and causing significant damage to their investments, principally by reducing their profits and revenues.

II. OVERVIEW OF THE DISPUTE AND REQUESTS FOR RELIEF

7.
This Section offers a brief overview of the dispute and recalls the Parties' requests for relief.

A. Overview of the Dispute

8.
The essence of the dispute, in broad terms, lies in the Claimants' allegation that they invested in the PV plants in Spain in reliance upon what they understood to be the firm undertakings by Spain that there would be no significant detrimental alteration in the terms on which they would be paid for the electricity generated by their plants, but that Spain did subsequently make such an alteration, causing them to receive considerably less income than they had expected and thus causing them economic loss. Spain, on the other hand, maintains that no such firm undertakings were given, and that the Claimants were only ever entitled to expect a reasonable return on their investments, which they did in fact receive despite the changes in the regulatory regime.

B. The Parties’ Requests for Relief

(1) The Claimants’ Requests for Relief

9.
In their Memorial on the Merits, the Claimants requested the following relief:

a declaration that the Tribunal has jurisdiction under the ECT and the ICSID Convention;

a declaration that Spain has violated Part III of the ECT and international law with respect to Claimants' investments;

compensation to Claimants for all damages they have suffered as set forth in this Memorial and as will be further developed and quantified in the course of this proceeding;

all costs of this proceeding, including (but not limited to) Claimants' attorneys' fees and expenses, the fees and expenses of Claimants' experts, and the fees and expenses of the Tribunal and ICSID;

pre- and post-award compound interest at the highest lawful rate from the Date of Assessment until Spain's full and final satisfaction of the Award; and

any other relief the Tribunal deems just and proper.4

10.
In their Reply Memorial on the Merits and Counter-Memorial on Jurisdiction, the Claimants requested that the Tribunal grant the following relief:

a declaration that the Tribunal had jurisdiction under the ECT and the ICSID Convention;

a declaration that Spain has violated Part III of the ECT and international law with respect to Claimants’ investments;

compensation to Claimants for all damages they have suffered as set forth in this Reply and Claimants’ Memorial on the Merits and as will be further developed and quantified in the course of this proceeding;

all costs of this proceeding, including (but not limited to) Claimants’ attorneys’ fees and expenses, the fees and expenses of Claimants’ experts, and the fees and expenses of the Tribunal and ICSID;

pre- and post-award compound interest at the highest lawful rate from the Date of Assessment until Spain’s full and final satisfaction of the Award; and

any other relief the Tribunal deems just and proper.5

11.
In their Rejoinder on Jurisdiction, the Claimants requested that the Tribunal grant the following relief:

a declaration that the Tribunal has jurisdiction under the ECT and the ICSID Convention for all of Claimants’ claims, thereby rejecting Respondent’s jurisdictional objections in full;

a declaration that Spain has violated Part III of the ECT and international law with respect to Claimants’ investments;

compensation to Claimants for all damages they have suffered as set forth in their Memorial on the Merits and in their Reply Memorial on the Merits and as may be further developed and quantified during the course of this proceeding;

all costs of this proceeding, including (but not limited to) Claimants’ attorneys’ fees and expenses, the fees and expenses of Claimants’ experts, and the fees and expenses of the Tribunal and ICSID;

pre- and post-award compound interest at the highest lawful rate from the Date of Assessment until Spain’s full and final satisfaction of the Award; and

any other relief the Tribunal deems just and proper.6

12.
In their Post-Hearing Brief, the Claimants requested by way of relief:

a declaration that the Tribunal had jurisdiction under the ECT and the ICSID Convention;

a declaration that Spain has violated Part III of the ECT and international law with respect to Claimants' investments;

compensation to Claimants for all damages they have suffered as set forth in their submissions;

all costs of this proceeding, including (but not limited to) Claimants' attorneys' fees and expenses, the fees and expenses of Claimants' experts, and the fees and expenses of the Tribunal and ICSID;

pre- and post-award compound interest at the highest lawful rate from the Date of Assessment until Spain's full and final satisfaction of the Award; and

any other relief the Tribunal deems just and proper.7

(2) The Respondent’s Requests for Relief

13.
In its Counter-Memorial on the Merits and Memorial on Jurisdiction, the Respondent requested that the Tribunal:

a) To declare its lack of jurisdiction over the claims of the Claimant Party or, if applicable, the inadmissibility of said claims.

b) Subsidiarily, in the event that the Arbitral Tribunal decides that it has jurisdiction to hear this dispute, to dismiss all the claims of the Claimant Party regarding the Merits, as the Kingdom of Spain has not breached the ECT in any way, pursuant to section IV herein, with regard to the Merits.

c) Subsidiarily, to dismiss all the Claimant Party's claims for damages as the Claimant has no right to compensation, in accordance with section V herein; and

d) Order the Claimant Party 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 until the date of their actual payment.8

14.
In its Memorial of Rejoinder on the Merits and Reply on Jurisdiction, the Respondent requested the Tribunal to:

a) Declare its lacks [sic] of jurisdiction to settle the claims of the Claimants, or if the case may be, their inadmissibility, in accordance with what is set forth in section III of this Document, referred to Jurisdictional Objections;

b) Alternatively, in the event that the Arbitral Tribunal decides that it has jurisdiction to hear this dispute, to dismiss all the Claimants' claims regarding the Merits of the case, as the Kingdom of Spain has not breached the ECT in any way, pursuant to sections IV and V herein, referred to the Facts and the Merits, respectively;

c) Alternatively, to dismiss all the Claimants' claims for damages as they are not entitled to compensation, in accordance with section V 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 up to the date of their actual payment.9

15.
In its Post-Hearing Brief, the Respondent requested the Tribunal that:

a) It declares its lack of jurisdiction to hear the claims of the Claimants, or where appropriate, their the [sic] inadmissibility, in accordance with what is stated in section II of this Respondent's Post-Hearing Brief in reference to Jurisdictional Objections;

b) Secondarily in the event that the Arbitration Tribunal were to decide that it has jurisdiction to hear the present dispute, that it rejects all the claims of the Claimants on the merits, since the Kingdom of Spain has not in any way breached the ECT, in accordance with what is set forth in sections III and IV of the present Brief, regarding the Facts and the Merits of the case.

c) Secondarily, that it dismisses all of the Claimants’ compensatory claims, as the Claimants have no right to compensation, pursuant to that stated in section V herein; and

d) To Order 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.10

III. PROCEDURAL HISTORY

16.
On 19 March 2015, ICSID received a request for arbitration that was said to be submitted on behalf of DSG Deutsche Solargesellschaft Group (the "DSG Group") and the Tauber Solar Investors Group (the "TS Investors Group") against the Kingdom of Spain.
17.
Paragraph 1 of the request read as follows:

1. The DSG Deutsche Solargesellschaft Group (the "DSG Group") and the Tauber Solar Investors Group (the "TS Investors Group") as defined herein (collectively, "Claimants") hereby request the initiation of an arbitration proceeding against the Kingdom of Spain ("Spain") under the Convention and Rules of the International Centre for Settlement of Investment Disputes ("ICSID"). Claimants file this Request for Arbitration pursuant to Article 25 of the ICSID Convention, ICSID Institution Rules 1 and 2, and Article 26(4)(c) of the Energy Charter Treaty ("ECT" or "Treaty"). [Emphasis in the original]

18.
The request for arbitration stated that "[t]he DSG Group is comprised of (a) sixty-five limited liability partnerships and two private companies, all duly established under the laws of Germany and (b) six individuals of German nationality,"11 and "[t]he TS Investors Group is comprised of (a) forty-one private companies duly incorporated under the laws of Germany and (b) two individuals of German nationality."12 In each case, the individual limited liability partnerships, private companies, and individuals of German nationality were identified in the request.13
19.
By letters dated 9 April 2015 and 1 May 2015 ICSID posed questions to the Claimants in an attempt to clarify the legal nature of the requesting parties.14 The Claimants’ counsel responded by letters of 17 April 2015, 24 April 2015, 8 May 2015, and 21 May 2015. In those letters the Claimants stated, inter alia, that the terms "DSG Group" and "TS Investors Group" had been "employed for the purpose of simplifying reference to two distinct sets of German investors and their respective investments in Spain." Counsel also listed each of the 116 Claimants in this proceeding.15
21.
On 4 June 2015, the Secretary-General of ICSID registered the Request in accordance with Article 36(3) of the ICSID Convention and notified the Parties of the registration. In the Notice of Registration, the Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible in accordance with Rule 7(d) of ICSID’s Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings.
22.
The Parties agreed to constitute the Tribunal in accordance with Article 37(2)(a) of the ICSID Convention as follows: the Tribunal would consist of three arbitrators, one to be appointed by each Party and the third, who would preside the Tribunal, to be appointed by agreement of the Parties.
23.
The Tribunal was composed of Professor Vaughan Lowe, QC, a national of the United Kingdom, President, appointed by agreement of the Parties; Mr. Gary Born, a national of the United States, appointed by the Claimant; and Professor Zachary Douglas, QC, a national of Australia, appointed by the Respondent.
24.

On 19 January 2016, the Secretary-General notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date in accordance with Rule 6(1) of the ICSID Rules of Procedure for Arbitration Proceedings (the "Arbitration Rules"). Ms. Mairée Uran Bidegain, ICSID, was designated to serve as Secretary of the Tribunal.

25.
By letter of 9 February 2016, the Centre informed the Parties that a first session would be held with the Tribunal on 14 March 2016 and circulated a draft Agenda and Procedural Order No. 1. The Parties were also invited to inform the Tribunal of their agreements or points of disagreement on the proposed procedural issues by no later than 2 March 2016.
26.

On 19 February 2016, the Respondent made an application under ICSID Arbitration Rule 41(5), alleging that the claim was "manifestly without legal merit" (the "Respondent’s Rule 41(5) Objection"). On 2 March 2016, the Claimants filed observations on the Respondent’s Rule 41(5) Objection.

27.
On 8 March 2016, the Parties submitted their joint comments on the draft Procedural Order No. 1 and advised the Centre that they would propose a calendar shortly thereafter.
28.
By letter of 9 March 2016, the Tribunal informed the Parties of its decision to dismiss the Respondent’s Rule 41(5) Objection and that a reasoned decision would follow. On 14 March 2016, the Tribunal issued the reasoned decision on the Respondent’s Rule 41(5) Objection. In its Decision, the Tribunal dismissed the Respondent’s preliminary objections, as well as its application for costs and for an order for security for costs.
29.
In its 9 March 2016 letter, the Tribunal also asked the Parties to confirm whether they foresaw any practical difficulties in handling questions (including, but not limited to, questions of liability and/or quantum if the case should proceed to a merits phase), if all 116 Claimants proceeded as if they had a single claim; and if so, what practical steps might be taken to minimize those difficulties.
30.
On 11 March 2016, the Parties submitted their replies to the Tribunal’s letter of 9 March 2016. The Claimants confirmed that they did not foresee any practical difficulties that would arise by proceeding together in a single arbitration. The Respondent stated that at this procedural stage, it was not possible to examine in depth the difficulties which may arise if the 116 Claimants were to proceed as if they had only one claim, and requested that the Tribunal enable it to defer its reply and include it in its Request for Bifurcation, if any.
31.

On 15 March 2016, the Tribunal held a first session with the Parties by teleconference in accordance with ICSID Arbitration Rule 13(1).

32.
On 30 March 2016, following the first session, the Tribunal issued Procedural Order No. 1 recording the agreement of the Parties and the Tribunal’s decisions on procedural matters. Procedural Order No. 1 provides, inter alia, that the applicable Arbitration Rules would be those in effect from 10 April 2006, that the procedural languages would be English and Spanish, and that the place of proceeding would be Washington, D.C. Procedural Order No. 1 also sets out the agreed schedule for the jurisdictional/merits phase of the proceedings.
33.

On 18 April 2016, the European Commission filed an Application for leave to intervene as a non-disputing party pursuant to ICSID Arbitration Rule 37(2) (the "European Commission’s Application").

34.
On 5 May 2016, the Parties submitted their observations on the European Commission’s Application. The Respondent asked the Tribunal to grant the Commission leave to file the non-disputing party ("NDP") submission. The Claimants objected to the Commission’s intervention and requested the Tribunal to deny the European Commission’s Application.
35.
On 13 May 2016, the Tribunal "decided to allow the European Commission to make written submissions, limited to questions of the Tribunal’s jurisdiction, by 27 June 2016. The Tribunal propose[d] for that purpose to transmit to the European Commission a copy of the Request for Arbitration dated 19 March 2016, and a copy of the ICSID Convention and Arbitration Rules, but no other documents from the case file."16
36.
On 19 May 2016, in accordance with the Tribunal’s decision, and in the absence of the Parties’ objections, the European Commission received a copy of the Request for Arbitration.
37.
On 27 June 2016, the European Commission filed its NDP submission.
38.
On 28 July 2016, the Claimants filed their Memorial on the Merits, accompanied by:

■ Witness Statements of:

- Joachim Kruck, dated 21 July 2016
- Peter Flachsmann, dated 11 July 2016
- Klaus Matuschke, dated 28 July 2016
- Markus Karl, dated 19 July 2016
- Klaus-Bruno Flech, dated 18 July 2016
- Karsten Reiss, dated 19 July 2016

■ Expert Reports by:

- Brattle Group Quantum Report, dated 27 July 2016, with exhibits BQR-001 to BQR-174
- Brattle Group Regulatory Report, dated 27 July 2016, with exhibits BRR-001 to BRR-131
- Manuel Aragon Reyes, dated 7 July 2016
- Jaume Margarit, dated 7 July 2016

■ Exhibits C-001 to C-342

■ Legal Authorities CL-001 to CL-134.

39.
On 29 July 2016, the Claimants submitted their observations on the European Commission’s NDP submission.
40.
On 31 October 2016, the Respondent filed its Counter-Memorial on the Merits and Memorial on Jurisdiction, accompanied by:

■ Witness Statement of:

- Carlos Montoya, dated 27 October 2016, with exhibits17

■ Expert Reports by:

- Pablo Pérez Tremps and Marcos Vaquer Caballería, dated 25 July 2016
- Grant Geatrex, David Pérez López, Jesús Fernández Salguero and Carlos Montojo González, dated 31 October 2016, with exhibits DOC-001 to DOC-046

■ Exhibits R-016 to R-243

■ Legal Authorities RL-030 to RL-096.

41.
On 13 January 2017, each Party submitted its respective Request to Produce Documents in a Redfern Schedule for decision by the Tribunal.
42.
On 31 January 2017, the Tribunal issued Procedural Order No. 2 on document production.
43.
On 26 April 2017, the Claimants filed their Reply on the Merits and Counter-Memorial on Jurisdiction, accompanied by:

■ Second Witness Statements of:

- Joachim Kruck, dated 25 April 2017
- Markus Karl, dated 25 April 2017
- Karsten Reiss, dated 20 April 2017

■ Rebuttal Expert Reports by:

- Brattle Group Rebuttal Quantum Report, dated 26 April 2017, with exhibits BQR-175 to BQR-188
- Brattle Group Rebuttal Regulatory Report, dated 26 April 2017, with exhibits BRR-132 to BRR-209
- Manuel Aragón Reyes, dated 5 April 2017
- Jaume Margarit, dated 18 April 2017

■ Exhibits C-343 to C-490

■ Legal Authorities CL-135 to CL-179.

44.
On 27 June 2017, the Respondent filed its Rejoinder on the Merits and Reply on Jurisdiction, accompanied by:

■ Second Witness Statement of:

- Carlos Montoya, dated 27 June 2017, with exhibits18

■ Rebuttal Expert Reports by:

- Pablo Pérez Tremps and Marcos Vaquer Caballería, dated 21 June 2017
- Grant Greatrex, David Pérez López, Jesús Fernández Salguero and Carlos Montojo González, dated 27 June 2017, with exhibits DOC-048 to DOC-093

■ Exhibits R-244 to R-361

■ Legal Authorities RL-097 to RL-112.

45.
On 23 July 2017, the Claimants filed their Rejoinder on Jurisdiction, together with exhibits C-491 to C-498, and Legal Authorities CL-180 to CL-189.
46.
On 8 February 2018, the President held a pre-hearing organizational meeting with the Parties by telephone conference.
47.
On 12 February 2018, pursuant to Article 16.3 of Procedural Order No. 1, the Parties submitted requests to add documents to the record to the Tribunal.
48.

On 13 February 2018, the Respondent proposed the disqualification of Mr. Gary Born, in accordance with Article 57 of the ICSID Convention and ICSID Arbitration Rule 9 (the "First Proposal"). On that date, the Centre informed the Parties that the proceeding had been suspended until the Proposal was decided, pursuant to ICSID Arbitration Rule 9(6).

49.

The Parties were also informed that the Proposal would be decided by Professors Lowe and Douglas (the "Two Members"), in accordance with Article 58 of the ICSID Convention and ICSID Arbitration Rule 9(4).

50.
On 14 February 2018, the Claimants submitted preliminary observations to the First Proposal, to which the Respondent responded by 15 February 2018.
51.
Pursuant to Annex A, of Procedural Order No. 1, as modified by agreement of the Parties, the hearing on jurisdiction and merits was scheduled to take place from 26 February to 1 March 2018. On 15 February 2018, the Two Members ordered that the hearing dates be vacated and established a procedural calendar for the Parties to submit their observations on the Proposal.
52.
On 20 February 2018, the Claimants filed observations on the First Proposal.
53.

On 27 February 2018, Mr. Gary Born furnished his explanations regarding the First Proposal in accordance with ICSID Arbitration Rule 9(3).

54.
On 5 March 2018, each Party filed additional observations on the First Proposal.
55.
On 16 March 2018, the Two Members issued their decision on the First Proposal, rejecting Respondent’s proposal, urging the Parties to make every effort to reschedule the proceedings as quickly and as soon as possible, and determining that a final decision on the costs associated with the First Proposal will be made at a later stage. In their Decision, the Two Members invited the Claimants to file "a more complete and detailed explanation... of what those costs are and how they arose directly from the challenge rather than from the general preparation of the case," and invited the Respondent to file "a further submission... on the reasons why the challenge could not have been made earlier."19 On the same date, the proceeding was resumed pursuant to ICSID Arbitration Rules 53 and 9(6).
56.

On 26 March 2018, the Tribunal invited the Parties to produce the judgment rendered by the Court of Justice of the European Union on 6 March 2018, in Case No. C-284/16, Slovak Republic v. Achmea B.V (the "Achmea Judgement"). The Parties were also invited to make written submissions on the implications for the present case of the Achmea Judgment by 27 April 2018.

57.
On 27 March 2018, the Respondent filed a request for the Tribunal to admit new documents into the record.
58.
On 29 March 2018, the Claimants produced the Achmea Judgment, as legal authority CL-190. On the same date, the Claimants stated they had no objection to the Respondent's request of 27 March 2018 and submitted their own request to add new documents to the record.
59.
On 30 March 2018, the Tribunal decided to admit all the new documents requested by the Parties on 27 March 2018 and 29 March 2018.
60.
On the same date, the Parties made written submissions on the implications for the present case of the Achmea Judgment, as requested by the Tribunal.
61.
On 30 April 2018, the Parties made additional written submissions as requested in the decision on the proposal to disqualify Mr. Gary Born. Accordingly, the Claimants filed a submission on costs associated with the First Proposal and the Respondent filed a submission on the reasons why the First Proposal could not have been made earlier.
62.
On 16 May 2018, the European Commission requested leave from the Tribunal to update its 27 June 2016 NDP submission in light of the Achmea Judgment.
63.
On 18 May 2018, after consultation with the Parties, the Tribunal notified them of its decision to hold the hearing in Paris from 25 February to 1 March 2019.
64.
On 23 May 2018, the Tribunal invited the Parties "to prepare an agreed chronology of events and separate lists of issues in dispute" and asked that it be provided with an approximate date when those submissions may be ready.
65.
On 30 May 2018, the Parties submitted their observations on the European Commission’s Proposal to update its NDP submission.
66.
On 12 June 2018, the Tribunal notified the Parties of its decision to accept the Commission’s invitation, in light of the Achmea Judgment, as well as of the decisions of other investment tribunals on this matter. The Tribunal specified that the "Commission’s updated observations would be limited to commenting on the consequences and implications of the aforementioned ECJ decision on arbitrations brought under the Energy Charter Treaty, as well as on other recent developments that the Commission might think material to the jurisdictional questions before this Tribunal."
67.
On 13 June 2018, the European Commission was notified of the Tribunal’s decision.
68.

On 22 June 2018, Mr. Gary Born submitted his resignation to the Secretary General of ICSID, and to Professors Lowe and Douglas, in accordance with ICSID Arbitration Rule 8(2).

69.
On 25 June 2018, Professors Vaughan Lowe and Zachary Douglas consented to Mr. Born’s resignation.
70.

On that same date, the Parties were notified of Mr. Born’s resignation and of the suspension of the proceeding. The Claimants were further invited to appoint an arbitrator in accordance with ICSID Arbitration Rule 11(1).

71.
On 16 July 2018, the European Commission filed its updated NDP submission. The Secretariat circulated the updated NDP submission to the Parties on 19 July 2018 and to the reconstituted Tribunal and the Parties on 8 August 2018.
72.
On 6 August 2018, the Claimants’ appointed Dr. Michael Pryles to replace Mr. Born.
73.

On 8 August 2018, Dr. Michael Pryles accepted his appointment as co-arbitrator in this case, and the Tribunal was reconstituted. Its members are Prof. Vaughan Lowe, QC, a national of the United Kingdom, President, appointed by agreement of the Parties; Dr. Michael Pryles AO, PBM, a national of Australia, appointed by the Claimant; and Prof. Zachary Douglas, QC, a national of Australia, appointed by the Respondent. The proceeding was resumed in accordance with ICSID Arbitration Rule 12.

74.
On the same date, the Centre informed the Parties of the departure of Ms. Mairée Uran Bidegain from the ICSID Secretariat, and of the designation of Mr. Paul Jean Le Cannu to serve as Secretary of the Tribunal.
75.
On 5 October 2018, after consultation with the Parties, the Tribunal confirmed that the hearing on jurisdiction and merits was rescheduled to be held from 3 June to 7 June 2019.
76.
On 6 November 2018, the Claimants referred to the Parties’ 12 February 2018 requests to add documents to the record and informed the Tribunal as follows:

The Parties have agreed that they will exchange further requests to add documents to the record in May 2019, prior to the hearing. Further, the Parties have agreed that they waive any objection to the timeliness of such requests under Procedural Order No. 1 on the basis that the opposing Party could have requested to add a document prior to May 2019, in the months after the Tribunal was reconstituted. This waiver of objections to timeliness will apply only to new legal authorities and exhibits regarding Spain's regulatory regime that have been made public after the Parties' original 12 February 2018 requests.

77.
The Claimants inquired on behalf of the Parties whether the Tribunal would prefer to rule on the Parties’ 12 February 2018 requests now, or together with the Parties’ May 2019 scheduled requests to add documents to the record. On 7 November 2018, the Respondent confirmed the Parties’ agreement regarding the Parties’ requests to add documents to the record.
78.
On 8 November 2018, the Secretariat informed the Parties that the Tribunal would prefer to address the 12 February 2018 applications together with the Parties’ May 2019 scheduled requests to add documents to the record.
79.

On 16 April 2019, the Respondent proposed the disqualification of Prof. Vaughan Lowe pursuant to Article 57 of the ICSID Convention and ICSID Arbitration Rule 9 (the "Second Proposal"). By letter of the same date, the Secretariat confirmed receipt of the Second Proposal and informed the Parties that (i) the Second Proposal would be decided by the other members of the Tribunal (the "Unchallenged Arbitrators") and (ii) the proceeding would be suspended until a decision had been taken on the Second Proposal.

80.
On 17 April 2019, the Claimants submitted preliminary observations to the Second Proposal, and proposed a schedule for the parties’ submissions.
81.
On 18 April 2019, the Unchallenged Arbitrators established a schedule for the parties’ submissions on the Second Proposal.
82.
On 26 April 2019, the Claimants submitted observations on the Second Proposal.
83.

On 28 April 2019, Prof. Lowe furnished his explanations on regarding the Second Proposal in accordance with ICSID Arbitration Rule 9(3).

84.
On 6 May 2019, the Parties filed a simultaneous round of additional observations on the Second Proposal.
85.
On 14 May 2019, the Unchallenged Arbitrators notified the Parties of their decision to reject the Second Proposal, and stated that a reasoned decision would follow.
86.
On 17 May 2019, the Unchallenged Arbitrators issued their reasoned decision on the Second Proposal.
87.
On 23 May 2019, the Respondent notified the Tribunal that their expert Prof. Pablo Pérez Tremps would be unable to attend the hearing due to medical reasons. Their witness Mr. Carlos Montoya would be unable to attend the hearing as well due to "personal and professional reasons." On the same date, the Claimants submitted their observations regarding Mr. Montoya’s inability to attend the hearing, and requested the Tribunal to strike both of his witness statements from the record, in accordance with Section 18.5 of Procedural Order No. 1.
88.
On 28 May 2019, the Respondent filed a request for the Tribunal to admit new documents into the record.
89.
On 29 May 2019, the Claimants filed a request for the Tribunal to admit new documents into the record.
90.
On 30 May 2019, the Tribunal decided to admit all the new documents requested by the Parties on 28 and 29 May 2019, respectively.
91.
On the same date, in regard to the Claimants request of 23 May 2019, the Tribunal notified the Parties of its decision that Mr. Montoya's witness statements would remain in the record but would not be relied upon by the Tribunal if Mr. Montoya failed to appear at the hearing without a valid reason.
92.
On 31 May 2019, the Tribunal issued Procedural Order No. 3 on the organization of the hearing on jurisdiction and merits.
93.
A hearing on jurisdiction and merits was held in Paris, France from 3 June to 7 June 2019 (the "Hearing"). The following persons were present at the Hearing:

Tribunal:
Prof. Vaughan Lowe QC President
Dr. Michael Pryles AO, PBM Arbitrator
Prof. Zachary Douglas QC Arbitrator

ICSID Secretariat:
Mr. Paul-Jean Le Cannu Secretary of the Tribunal

For the Claimants:
Counsel:
Mr. Reginald Smith King & Spalding
Mr. Kevin Mohr King & Spalding
Ms. Amy Frey King & Spalding
Mr. Jan Schafer King & Spalding
Mr. Christopher Smith King & Spalding
Ms. Violeta Valicenti King & Spalding
Mr. Karam Farah King & Spalding
Mr. Cristian Boruzi King & Spalding
Ms. Inés Vazquez García Gómez-Acebo & Pombo
Ms. Inés Puig-Samper Gómez-Acebo & Pombo
Ms. Cristina Matia Garay Gómez-Acebo & Pombo

Parties:
Mr. Andreas Nagel DSG
Ms. Mafalda Soto DSG / Brenes Abogados
Mr. Joachim Kruck (after examination) DSG
Mr. Peter Flachmann (after examination) DSG / KACO
Mr. Klaus Matuschke (after examination) DSG
Mr. Markus Schreck Tauber Solar
Mr. Antonio Jiménez Abraham Monereo Meyer Marinel-lo Abogados; Tauber Solar
Mr. Klaus-Bruno Fleck (after examination) Tauber Solar

For the Respondent:
Counsel:
Ms. María José Ruiz Sánchez Abogacía General del Estado
Mr. Pablo Elena Abad Abogacía General del Estado
Mr. Roberto Fernández Castilla Abogacía General del Estado
Ms. Almudena Pérez-Zurita Gutiérrez Abogacía General del Estado
Mr. Alberto Torró Molés Abogacía General del Estado

Court Reporter(s) :
Mr. Dante Rinaldi D-R Esteno, Spanish Court Reporter
Ms. María Eliana Da Silva D-R Esteno, Spanish Court Reporter
Ms. Luciana Sosa D-R Esteno, Spanish Court Reporter
Mr. Trevor McGowan The Court Reporter Ltd

Interpreters:
Mr. Jesús Getan Bornn English-Spanish
Ms. Amalia Thaler de Klemm English-Spanish
Mr. Marc Viscovi English-Spanish
Mr. Ralph Gerhardt English-German
Ms. Silke Schoenbuchner English-German
Ms. Barbara Weller English-German

94.
During the Hearing, the following persons were examined:

On behalf of the Claimant(s):
Witness(es):
Mr. Joachim Kruck DSG
Mr. Peter Flachmann DSG / KACO
Mr. Klaus Matuschke DSG
Mr. Klaus-Bruno Fleck Tauber Solar
Mr. Markus Karl Tauber Solar
Mr. Karsten Reiss hagebau; Tauber Solar

Expert(s):
Mr. Jaume Margarit Independent Consultant, formerly Director of Renewable Energy at the IDAE
Dr. Manuel Aragón Reyes Autonomous University of Madrid (Professor of Constitutional Law) Mr. Carlos Lapuerta Brattle
Mr. Jose Antonio Garcia Brattle
Mr. Richard Caldwell Brattle
Mr. Alejandro Zerain Brattle
Ms. Aurora Velente Brattle

On behalf of the Respondent(s) :
Expert(s):
Dr. Marcos Vaquer Caballería Universidad Carlos III Madrid
Mr. Grant Greatrex Altran MaC Group
Mr. David Pérez López Altran MaC Group
Mr. Jesús Fernández Salguero Altran MaC Group
Mr. Carlos Montojo González Altran MaC Group
Mr. Antonio Sanchis Boscá Altran MaC Group

95.
On 6 June 2019, at the hearing, each Party objected to certain slides in the presentations of the other Party's experts (the "Contested Slides"). On the same date, the Parties provided explanations on said slides in accordance with the Tribunal's instructions.
96.
On 19 June 2019, further to the Tribunal's instructions, the Parties submitted additional observations on the Contested Slides.
97.
On 26 June 2019, each Party submitted its response to the other Party's 19 June observations on the Contested Slides. Having considered the Parties' respective submissions, the Tribunal subsequently decided during its deliberations that all the slides would be admitted, but that any propositions or data relied upon by the Tribunal would be drawn from the submissions of the Parties to which the slides refer and not from the slides themselves.
98.
On 1 August 2019, as indicated by the Tribunal at the hearing, the Centre transmitted the Tribunal's questions that the Parties were invited to address in their respective post-hearing briefs, in addition to the questions raised by the Tribunal at the hearing.
99.
On 19 September 2019, the Parties filed simultaneous post-hearing briefs.
100.

On 4 December 2019, pursuant to Section 16.3 of Procedural Order No. 1, the Respondent sought leave to file the Stadtwerke Award20 and the BayWa Decision (the "4 December Section 16.3 Request").21 Further to the Tribunal’s invitation, the Claimants submitted comments on the 4 December Section 16.3 Request on 18 December 2019, along with their own request for leave to file additional legal authorities22 and a factual exhibit. The Respondent filed a response to the Claimants’ 18 December 2019 comments, including a request to file an additional legal authority,23 on 9 January 2020.

101.
On 24 January 2020, the Tribunal ruled as follows:

The Tribunal notes that the Parties agree that the BayWa Decision and the Stadtwerke, OperaFund and Cube Awards should be admitted into the record by the Tribunal. By contrast, there is no agreement between the Parties as to the admission of the Claimants' proposed new factual exhibits, Royal Decree-Law (RDL) 17/2019 and statements by the Minister of Ecological Transition to the Spanish Parliament regarding RDL 17/2019.

The Tribunal has decided to allow the Parties to enter into the record the above-referred Decisions and Awards, including dissents, to the extent that they are publicly and freely available via the Internet and that either Party considers that the Tribunal should review them. As contemplated in Section 13 of PO1, the Tribunal does not require hard copies: it will be sufficient to send a list of such Decisions and Awards together with an indication of their legal authority number and where on the Internet they are to be found. The Tribunal does not wish to receive comments on these additional legal authorities.

The Tribunal further considers that no exceptional circumstances have been shown that would justify the admission of additional factual exhibits at this late stage. The Claimants' request for admission of further factual exhibits is therefore dismissed.

102.
On 29 January 2020, the Respondent sought confirmation that its 9 January 2020 request for leave to file the RWE Decision had been granted. On 30 January 2020, the Claimants filed a request for leave to file the Watkins Award.24 The Claimants also submitted their Consolidated Legal Authorities Index and legal authorities CL-221 and CL-222.
103.
On 7 February 2020, having noted that the Claimants had no objection to Spain's additional request to add the RWE Decision to the record so long as Spain has no objection to adding the Watkins Award to the record as well, the Tribunal invited Spain to confirm its consent to the admission of the Watkins Award into the record as soon as possible. In addition, in light of the Parties' recent correspondence on this matter, the Tribunal confirmed that it would admit into the record any additional published decision or award issued in treaty arbitrations to which Spain is a party, on the conditions set forth in the email from the Secretariat dated 24 January 2020.
104.
On 11 February 2020, Spain submitted a consolidated list of legal authorities, along with legal authorities RL-144 to RL-148. Spain also confirmed that it did not object to the submission of the Watkins Award, provided that the Dissenting Opinion of Prof. Dr. Hélène Ruiz Fabri was also added to the record. On the same date, further to the Tribunal's 7 February 2020 communication, the Claimants submitted their updated Consolidated Legal Authority Index, along with legal authority CL-223 (the Watkins Award and Dissent).
105.

On 5 March 2020, the Respondent filed a request for leave to file the PV Investors Award25 under Section 16.3 of PO1. The Claimants submitted comments on the Respondent's request on 9 March 2020.

106.
On 11 March 2020, the Tribunal referred to the Secretariat's communication of 7 February 2020 and confirmed that it would admit into the record any additional published decision or award issued in treaty arbitrations to which Spain is a party, on the conditions set forth in the Secretariat's email of 24 January 2020. The Tribunal further informed the Parties that it did not wish to receive comments on these additional legal authorities at this stage, but proposed to invite a final comment, of limited length, from each Party on this and any other award that has been published since the hearing before closing the proceeding.
107.
On 18 March 2020, the Respondent submitted legal authorities RL-149 and 150 (the PV Investors Award and Judge Brower's Dissenting Opinion) and the Respondent's consolidated list of legal authorities.
109.
On 19 June 2020, the Tribunal conveyed the following message to the Parties through its Secretary:

The Tribunal recalls the Secretariat’s communication of 7 February 2020, which said that the Tribunal ‘will admit into the record any additional published decision or award issued in treaty arbitrations to which Spain is a party, on the conditions set forth in the Secretariat’s email of 24 January 2020. ’ Those conditions are that the Parties are allowed ‘to enter into the record the above-referred Decisions and Awards, including dissents, to the extent that they are publicly and freely available via the Internet and that either Party considers that the Tribunal should review them. As contemplated in Section 13 of PO1, the Tribunal does not require hard copies: it will be sufficient to send a list of such Decisions and Awards together with an indication of their legal authority number and where on the Internet they are to be found.’

The Tribunal confirms that it does not wish to receive comments from either Party on this additional legal authority immediately, and that it will invite a final comment, of limited length, from each Party on this and any other award or decision that has been published since the hearing. Those comments will be invited in the coming weeks, after which the Tribunal will formally close the proceedings.

110.
On 23 June 2020, the Respondent submitted the Eiser Decision as legal authority RL-151.
111.

On 26 October 2020, the Respondent submitted legal authorities RL-152 and 153 (the Decision on Jurisdiction, Liability and Directions on Quantum and the Dissenting Opinion of Mr. David R. Haigh Q.C., both issued on 31 August 2020 in Cavalum SGPS SA v. Kingdom of Spain (ICSID Case No. ARB/15/34)) and the Respondent’s consolidated list of legal authorities. The following day, the Claimants submitted Legal Authority CL-224 (the Decision on Jurisdiction, Liability and Directions on Quantum and the Dissenting Opinion of Prof. Pierre-Marie Dupuy, both issued on 8 October 2020 in STEAG GmbH v. Kingdom of Spain (ICSID Case No. ARB/15/4)) and the Claimants’ Consolidated List of Legal Authorities.

112.
Recalling its emails of 11 March 2020 and 19 June 2020 concerning the submission of comments on Awards and Decisions filed after the oral hearing, the Tribunal informed the Parties, through its Secretary, on 11 November 2020 that

The Tribunal has decided that it would now be helpful to receive these submissions, in the form of a link to an on-line version of the Decision or Award in question and a brief comment (limited to 500 words for each Decision or Award) of its relevance to the case pleaded by the Party adducing the Decision or Award. The Parties should submit their comments simultaneously to the Tribunal secretary, by close of business (Washington DC) on Friday 04 December 2020. [Emphasis in the original]

113.
The Parties and the Tribunal subsequently agreed that comments would be submitted on 11 December 2020, and both Parties submitted their comments accordingly.
114.

On 22 March 2021, the Respondent submitted as legal authority RL-154 the Final Award rendered 8 March 2021 in Freif Eurowind Holdings Ltd. (United Kingdom) v. Kingdom of Spain, SCC Case V 2017/060, along with a consolidated List of Legal Authorities (RL). On 25 March 2021, the Respondent submitted an additional legal authority, the Decision on Jurisdiction and Liability issued on 17 March 2021 in Eurus Energy Holdings Corporation v. Kingdom of Spain (ICSID Case No. ARB/16/4) (legal authority RL-0155), and a consolidated List of Legal Authorities (RL). On 26 March 2021, the Tribunal through its Secretary acknowledged receipt of legal authorities RL-0154 and RL-0155, and indicated that it did not wish to receive any comment on them from either Party. The Tribunal also invited the Parties to confirm the accuracy of the lists of Party representatives and June 2019 hearing participants as provided to the Parties. On 29 March 2021, the Claimants confirmed the accuracy of the list of hearing participants with respect to the Claimants’ counsel, party representatives, fact witnesses, and experts, and requested certain modifications to the list of Claimants’ representatives. They also requested that the Respondent be required to submit the Partial Dissent of Arbitrator Oscar Garibaldi in the Eurus v. Spain case, which in their view the Respondent ought to have included with the Decision on Jurisdiction and Liability. By email of 4 April 2021 from the Secretariat, the Respondent was requested on behalf of the Tribunal to submit a copy of Mr. Garibaldi’s Partial Dissent in the interest of having a complete file. The Respondent submitted the Partial Dissent as legal authority RL-156 on 5 April 2021.

115.
The Tribunal wishes to record that the succinct comments submitted at this stage by the Parties have a particular value in the context of the overall system of international investment arbitration. While there can be no doctrine of binding precedent among the ad hoc tribunals adjudicating upon investment disputes, the consistency and predictability of legal decisions is a goal of the most fundamental importance. No tribunal is an island entire of itself. It is one element of a much more extensive, evolving system for the protection of parties’ rights; and individual tribunals are, rightly, slow to depart from principles and analyses that are generally accepted and established within the system. This axiomatic point has a particular poignancy in investment arbitration, given the roles placed by the principles of non-discrimination and of fair and equitable treatment within the applicable substantive law. The point has, moreover, a special significance in situations where one and the same factual matrix has given rise to many arbitrated disputes. The Tribunal has, accordingly, given very careful consideration to the decisions of other tribunals, including those to which the Parties have referred in their December 2020 comments.
116.
Finally, for reasons that are explained below,26 the Tribunal decided during the course of its deliberations that the fairest and most efficient way in which to proceed would be to issue an initial decision addressing questions of jurisdiction and admissibility before proceeding to decide upon questions of liability and quantum.

IV. FACTUAL BACKGROUND

V. JURISDICTION

160.
In the Claimants' view, the Tribunal has jurisdiction over the dispute on the basis of Article 26 of the ECT and Article 25 of the ICSID Convention,109 whose jurisdictional requirements are, they say, all met in this case.110
161.
The Respondent raises the following three objections to the jurisdiction of this Tribunal:111

a. The Tribunal lacks jurisdiction because the Claimants are not protected investors under Article 25 of the ICSID Convention. Alternatively, the Tribunal lacks jurisdiction due to the Respondent's lack of consent to having the multiple Claimants' claims heard in a single arbitration (the "Multi-Party Objection");112

b. The Tribunal lacks jurisdiction since the Claimants are not protected investors under the ECT. They are not nationals of another Contracting Party because both Germany and Spain are members of the EU, also a party to the ECT, and the ECT does not apply to disputes related to Intra-EU investments (the "Intra-EU Objection");113 and

c. The Tribunal lacks jurisdiction to decide on the alleged breach of Article 10(1) of the ECT arising from the introduction of the TVPEE by Law 15/2012. This is because Article 21 of the ECT enshrines a carve-out for taxation measures and the TVPEE is a taxation measure (the "Taxation Measure Objection").114

162.
Therefore, the Respondent requests that the Tribunal declare that it lacks jurisdiction over the dispute or, if applicable, that the Claimants’ claims are inadmissible.115
163.
The Parties’ respective positions with respect to each of these three objections are summarized below.
164.
In the course of its analysis of those objections the Tribunal will also deal with certain other matters that are relevant to the establishment of its jurisdiction and the admissibility of the claims.
165.
The Tribunal notes that Germany, Spain and the EU are all Contracting Parties to the ECT. The ECT was ratified by Germany on 14 March 1997 and entered into force on 16 April 1998. For Spain the corresponding dates are 11 December 1997 and 16 April 1998; and for the European Union they are 17 December 1994 and 16 April 1998.116 The ICSID Convention was ratified by Germany on 18 April 1969 and entered into force for Germany on 18 May 1969. For Spain the corresponding dates are 18 August 1994 and 17 September 1994. The EU is not a party to the ICSID Convention, and as that Convention stands is not eligible to be.117

A. The Multi-Party Objection

(1) The Parties’ Positions

a. Respondent’s Position

166.
The Respondent states that the DSG Deutsche Solargesellschaft ("DSG") Group and the Tauber Solar Investors ("TS") Group, on behalf of which it says that the claims were filed, are not nationals of a Contracting Party to the ICSID Convention and, therefore, do not fulfil the requirements of Article 25 of the ICSID Convention.118
167.
In the alternative, should the Tribunal decide that the true Claimants are the 116 individuals and companies listed, the Respondent argues that the Tribunal lacks jurisdiction since Spain has not consented to a joint arbitration comprising their accumulated independent and heterogenous claims.119
168.
Based on Giovanni Alemanni v. Argentina, the Respondent argues that a multi-party arbitration can only occur under one of three circumstances: (1) "when it is specifically provided for...(2) when both parties consent thereto, either expressly or implicitly; and (3) when "the instrument setting up the arbitration or establishing the Respondent’s consent to it can properly be interpreted... as covering the particular multiplicity of claimants within that consent."120 For the Respondent, none of these circumstances are present in this case.
169.
First, neither the ECT nor the ICSID Convention expressly provide for multi-party arbitration.121Second, the Respondent has not expressly or implicitly consented to any joint actions by the Claimants and, in fact, has expressed its opposition since the submission of the RfA.122Third, as explained in the following paragraphs, the claims presented by the Claimants are not identical in all essential aspects and "there are irreconcilable and relevant differences between them."123
170.
For the Respondent, when Article 25(1) of the ICSID Convention and Article 26(4) of the ECT use the phrases "any legal dispute" and "the dispute", these provisions presuppose "a substantive unity in the ‘dispute' submitted to arbitration."124 This requires that the interest represented on each side of the dispute has to be in all essential respects identical for all of those involved on that side of the dispute."125
171.
In the Respondent's view, the Claimants in this arbitration are unrelated investors with unrelated investments.126 As such, the inclusion of all the investments submitted in a single procedure would entail an "unparalleled experience"127 due to the "unprecedented level of subjective and objective heterogeneity in the field of investment arbitration" of all the Claimants.128
172.
With respect to the alleged "subjective heterogeneity", the Respondent argues that:

a. DSG Spanien Verwaltungs GmbH, DSG Deutsche Solargesellschaft mbH, Matthias Kruck, Joachim Kruck, Ralf Hofmann, Peter Flachsmann, Frank Schumm and Rolf Schumm have not demonstrated that they are investors in the plants;129 and

b. Two of the Claimants, DSG Spanien Verwaltungs GmbH and Matthias Kruck, do not claim anything. Thus, there is no dispute as required by Article 25 of the ICSID Convention.130

173.
With respect to the alleged "objective heterogeneity", the Respondent argues that there are multiple investors and investments of different natures and structures, including: (a) "Companies holding a stake in the holding companies of photovoltaic plants"; (b) "Companies holding direct ownership of essential elements of PV plants and, at the same time, indirect ownership of non-essential elements of PV plants"; (c) "Subjects holding a stake in companies owning economic rights deriving from leases to the holding companies of PV Plants for the deployment of their facilities"; (d) "Subjects holding a stake in companies owning purchase option rights on the PV plants"; (e) "Subjects holding economic rights deriving from operation and maintenance contracts concluded with the holding companies of the PV plants."131
174.
In this respect, the Respondent submits that it has not given its consent with regard to the claims presented by Deutsche Solar Ibérica Real State, S.L., Solar Andaluz Grundstücks, S.L. and DSG Deutsche Solargesellschaft GmbH. These Claimants do not perform activities related to the production of electricity and/or the guarantees in dispute,132 and are claiming damages for breach of the contracts they entered into with the companies holding the Plants which, under no circumstances, can be the Respondent’s responsibility.133
175.
In its PHB, the Respondent submitted an additional argument regarding the "lost bonus payments" that DSG Deutsche Solargesellschaft GmbH claims in relation to the O&M (operations and maintenance) Contracts to which it is a party.134 For the Respondent, these contracts do not satisfy the objective criterion of an "investment" under Article 25(1) of the ICSID Convention nor under Articles 1(6) and 26 of the ECT. Thus, the Tribunal should decline its jurisdiction in relation to such contracts, which would have an impact on the total quantum of the dispute.135
176.
In support of this argument, the Respondent contends that the Tribunal must assess its jurisdiction ex officio under Article 41(1) of the ICSID Convention; it is therefore irrelevant that the argument was not presented earlier.136 In any event, the Respondent submits, this argument relates to its jurisdictional objection based on the "unprecedented objective heterogeneity" of investors and investments whose confusing nature has prevented the Respondent from articulating a more detailed defence in this case.137
177.
Finally, the Respondent states that the heterogeneity among the Claimants is also evident from the fact that the alleged investments were made over a five-year period and that some investors made their investment after some of the challenged measures were enacted.138

b. Claimants’ Position

178.
The Claimants reject the position adopted by the Respondent arguing that it is not supported by the ECT, the ICSID Convention or arbitral case law.139 They argue that: (1) the Respondent mischaracterized the Claimants’ identities; (2) Spain’s separate consent to multi-party arbitration is not required; and (3) the Claimants are permitted to pursue arbitration jointly.140
179.
First, the Claimants argue that the Respondent has mischaracterized the identity of the Claimants by arguing that the Claimants are the DSG Group and the TS Group.141 There are 116 different Claimants in these proceedings, something that they have explained in several submissions. The DSG Group and the TS Group are not and have never been the names of any formal legal entity or claimant; they are just the names assigned to two independent groups in which the Claimants have been categorized due to their commonalities.142
180.
Second, the Claimants argue that they are not required to obtain specific consent to "multi-party" arbitration from Spain.143 Such separate consent requirement does not exist under the ECT, the ICSID Convention or ICSID Arbitration Rules, and has been rejected by the Tribunal in Giovanni Alemanni v. Argentina.144 On the contrary, for reasons of efficiency, it is in the interest of both parties to hear the Claimants' claims together.145
181.

Third, the Claimants argue that several tribunals have recognized that multi-party arbitrations are permissible.146 The correct standard for a multi-party arbitration, which has never been contested by the Respondent, is whether there is a common legal dispute, originated from the same facts and measures, and the relief sought is significantly similar.147 There is no requirement that several named claimants in a single arbitration must hold "identical" investments.148

182.
The Claimants argue they comply with said standard. All 116 Claimants' investments are related to the PV projects; their claims are related to the alleged harm caused by Spain through the alteration and abrogation of RD 661/2007 and RD 1578/2008 incentives regime; and they share common issues of international law, including inter alia, whether there is a violation of the fair and equitable treatment and expropriation standards under the ECT.149 The Respondent has never rebutted these assertions.150
183.
With respect to the Respondent’s subjective and objective heterogeneity arguments, the Claimants contend that:

a. They have not concealed any information and have taken great care to transparently describe their investments, their ownership and the damages claimed;151 as such, they have demonstrated their ownership, directly or indirectly, of all the assets related to their facilities;152

b. DSG Spanien Verwaltungs GmbH and Mathias Kruck have not claimed any specific compensation to avoid double-counting; this does not affect the Respondent’s consent to arbitrate the dispute since these Claimants fulfil the jurisdictional requisites under the ECT and the ICSID Convention;153

c. Deutsche Solar Ibérica Real State, S.L. and Solar Andaluz Grundstücks, S.L. are not Claimants in this proceeding. Some of the DSG Claimants share ownership of these companies and, as such, these two companies are investments in relation to the Projects in Alcolea, Calasparra and Todersillas;154 and

d. DSG Deutsche Solargesellschaft GmbH holds contractual rights in relation to the Alcolea, Calasparra, and Tordesillas projects and these rights have been affected by the Respondent’s conduct;155 in any event, the Claimants’ experts have ensured there will be no double recovery.156

(2) The Tribunal’s Analysis

a. Can the DSG claims and TS claims be heard as a single case before this Tribunal?

184.
Although this objection has frequently been referred to in these proceedings as the multi-party objection, it is clear that it is not suggested that there is any prohibition on multi-party proceedings as such,157 and that the difference between the Parties concerns the conditions on which a number of claimants may come together and bring their claims under the ECT against a respondent as a single claim to be heard and determined in a single arbitration.
185.
One preliminary question can be answered and put aside swiftly. The Respondent objects to arbitrating a dispute with claimants who claim no compensation.158 The Tribunal notes that the Claimants have requested both compensation and declaratory relief,159 and that the Respondent has not shown that any rule or principle of international law requires or permits the treatment of claimants differently, for the purposes of establishing a consent to arbitrate, according to the remedy that they seek. The Tribunal does not consider that this objection has any effect upon questions of admissibility or jurisdiction, and accordingly rejects the objection.
187.
The composition of the two groups was summarized by the Claimants in a letter to ICSID dated 8 May 2015, as follows:

As previously explained, the 116 Claimants fall into two distinct (but informal) groups of investors that own investments related to solar photovoltaic plants in Spain. Those Claimants are listed and numbered in our letter of April 17, 2015.

Claimants numbered 1 through 73 in that list hold investments in three photovoltaic projects in Spain known as the Alcolea, Calasparra, and Tordesillas project (Request ¶¶ 2, 11-13, 33-39). Specifically, Claimants Joachim Kruck, Ralf Hofmann, Frank Schumm, Rolf Schumm, and Peter Flachsmann invested in the Alcolea solar park, which today consists of twenty 100 kW photovoltaic plants (see Request ¶¶ 12, 33). Those Claimants incorporated an engineering, procurement, and construction company in Spain called Solar Andaluz 2006 S.L. (Request ¶ 33), which constructed and financed the Alcolea project. Additionally, they incorporated Claimants Solar Andaluz 1-20 GmbH & Co. KGs in Germany, each of which owns a Spanish special purpose vehicle that in turn owns a 100 kW solar plant comprising the Alcolea project (Request ¶¶ 33, 35).

Claimants Joachim Kruck, Ralf Hofmann, and Peter Flachsmann further invested in two additional photovoltaic projects in Spain, called Calasparra and Tordesillas (Request ¶ 36). To manage construction of these projects, they formed DS Hispano Alemana Fotovoltaica Sociedad Unipersonal S.L. and incorporated Claimants Solarpark Tordesillas 401-430 GmbH & Co. KGs and Claimants Solarpark Calasparra 251-265 GmbH & Co. KGs (Request ¶¶ 36-38). Each of the Claimants Solarpark Tordesillas 401-430 GmbH & Co. KGs and Claimants Solarpark Calasparra 251-265 GmbH & Co. KGs owns a Spanish special purpose vehicle ("SPV") that in turn owns a 100 kW photovoltaic plant comprising the Calasparra and Tordesillas projects, respectively. The Claimants’ ownership interests in those SPVs and their ownership of the photovoltaic facilities are qualifying "investments."

Moreover, the investments of Claimant Kruck Beteiligungs GmbH include its contracts with all of the German limited partnerships named above to serve as their general partner (see Request ¶ 39). The investments of Claimants Peter Flachsmann, Joachim Kruck, and DSG Deutsche Solargesellschaft mbH ("DSG") include contractual rights and rights to money enshrined in operation and management contracts that Claimant DSG entered into with respect to each Spanish SPV (see id.). Further, Claimants Peter Flachsmann, Joachim Kruck, Ralf Hofmann, Frank Schumm, and Rolf Schumm’s investments include contractual rights and rights to money derived from lease agreements that a company they own, Solar Andaluz Grundstucks S.L. (SAG S.L.), entered into with the Alcolea SPVs (id.).

Separate from the investments described above, Claimants numbered 74 through 116 in our letter of April 17, 2015, own investments in and related to ten different solar photovoltaic projects held through a number of different SPVs in Spain. Specifically, Claimants TRC Energy GmbH, Sunburn Verwaltungs GmbH, and TS Villalba GmbH own fifteen 100 kW photovoltaic plants in the Cuenca III project (see Request ¶ 42; see also CEX-13). Claimant Sunburn Verwaltungs GmbH further owns six 100 kW photovoltaic plants comprising the Cabeza Oliva project. Tauber-Solar Sierra GmbH owns two 100 kW mounted photovoltaic plants comprising the Pozoblanco Rooftop project.

Claimants TS Abuzaderas 1-30 GmbHs own thirty 100 kW photovoltaic plants comprising the Abuzaderas project (id.). Claimant TS Avila Eins GmbH owns twenty 100 kW solar plants comprising the Avila project (id.). Claimants Karsten and J ü rgen Reiss, as well as Claimants WBG GmbH, TS Cuenca zwei GmbH, TRC Energy GmbH own seven 100 kW photovoltaic plants comprising the Cuenca I project (id.). Claimant ZKS GmbH owns a 415 kW photovoltaic plant called Henibra and Claimant TS Cuenca 20 GmbH owns a 415 kW photovoltaic plant called Boguar (see Request ¶ 43; see also CEX-13). Claimant TS Valtou GmbH owns a 476 kW photovoltaic plant called Valtou, and Claimant TS Cuenca 40 GmbH owns a 340 kW photovoltaic plant called Juan del Valle (id.). The Claimants’ ownership interests in their respective Spanish SPVs and their ownership of the respective photovoltaic facilities are qualifying "investments."165

188.
In the present case, the Claimants have in fact acted as two de facto groups at critical stages. For instance, the claims of all of the DSG Claimants were put forward to the Respondent on 16 June 2014 with a view to amicable settlement, and the claims of all the TS Claimants were put forward to the Respondent on 11 August 2014.166 While the case for all of the DSG Claimants and all of the TS Claimants has been presented in a single set of written and oral submissions, those submissions frequently refer to "the DSG Claimants" and "the TS Claimants" and describe the pertinent factual differences between them. In their pleadings the Claimants have consistently maintained that it is the individual members of these two groups who are the Claimants in these proceedings.167
189.
The Tribunal’s understanding is that references to the "DSG Claimants" and the "TS Claimants" are not intended to be anything more than convenient labels to describe these informal groupings of similarly-placed claimants. The Tribunal, too, uses the terms in that way, as convenient labels not intended to carry any legal implications.
190.
The issue is whether this Tribunal should proceed to exercise jurisdiction in the proceedings initiated by the Request for Arbitration dated 19 March 2015 to adjudicate upon all of the claims brought by the 73 Claimants comprising the DSG Claimants and all of the 43 Claimants comprising the TS Claimants.
191.
There are two elements to that question: (i) the question whether the Tribunal has jurisdiction in respect of the whole or part of the case set out in the Request for Arbitration, and (ii), the question whether the whole or part of the case set out in the Request for Arbitration is admissible.168
192.
The Tribunal considers that the distinction between those two elements is essentially that jurisdiction is an attribute of a tribunal, which has jurisdiction in respect of a certain limited category of disputes, whereas admissibility is a characteristic of the dispute actually submitted to the tribunal which, even if the dispute falls within the jurisdiction of a tribunal, may be rejected because it is for some reason (such as a failure to exhaust local remedies, in circumstances where exhaustion is required) inadmissible. In fact, however, the two concepts are closely related (and not uncommonly conflated), and in the present case nothing turns upon the distinction between them. The multi-party objection might be characterized as an objection based on the outer limits of the Respondent's consent to accept the jurisdiction of the Tribunal, and in that sense a jurisdictional objection; alternatively, that objection might be said to relate to whether the manner in which the Claimants have submitted their claims (each of which is, arguendo, individually within the Tribunal's jurisdiction) renders some or all of those claims inadmissible. That distinction was not the subject of argument before the Tribunal, and as was said above is not material in the present context. Accordingly, the Tribunal is not to be understood as deciding or taking a firm position on this question of the characterization of the multi-party objection as a matter of jurisdiction or of admissibility.
193.
Logically the question of jurisdiction should have priority because questions of admissibility cannot arise unless jurisdiction exists; but it is preferable in the present case to consider first the multi-party objection, whether it be a question of jurisdiction or of admissibility, because it is dispositive of a large number of cases. If one or both groups of claims (assuming that all of the Claimants in the group can be considered together, which point is addressed below) are not properly before the Tribunal, that single decision will dispose of all groups in that claim and narrow the scope of the case considerably, whereas jurisdiction must in any event be established in respect of each individual Claimant and will have to be considered in due course in relation to each claim. To put it another way, it is possible that even if there is jurisdiction over the individual claims brought by each one of the 116 Claimants, the submission of all of the claims together in a single case is impermissible. The Tribunal does not doubt that, if it has jurisdiction over each of the individual claims, the Parties could agree to have all of the claims determined together. The question is whether both Parties have in fact agreed and consented to that procedure.
194.
It is common ground that the answer to the multi-party objection (whether treated as a question of admissibility or of jurisdiction) turns on the scope of the Respondent's consent to the arbitration of ECT claims. It is clear that the Claimants - the DSG Claimants and the TS Claimants - consent to this Tribunal determining all of the claims in the Request for Arbitration: their consent is evident in the Request itself and in their pleadings. Equally, it is evident that the Respondent maintains that it has not consented to the Tribunal hearing and adjudicating upon all of these claims together in a single case. The Respondent is a Contracting State to the ICSID Convention and a Contracting Party to the ECT; and the question therefore depends upon the interpretation of those instruments in order to determine whether by its acceptance of them the Respondent has given the consent necessary to establish the jurisdiction of the Tribunal in this case and the admissibility of all of the claims presented.
195.
The relevant provisions are the consents to arbitration in Article 25 of the ICSID Convention and Article 26 of the ECT. ICSID Article 25 provides, in so far as is material, that "[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State... and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre." The effect of ICSID Article 25 is, in the present case, to refer the question of consent to the ECT.
196.

The relevant provision of ECT is Article 26, which reads as follows:

ARTICLE 26

SETTLEMENT OF DISPUTES BETWEEN AN INVESTOR AND A CONTRACTING PARTY

(1) Disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III shall, if possible, be settled amicably.

(2) If such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:

(a) to the courts or administrative tribunals of the Contracting Party party to the dispute;

(b) in accordance with any applicable, previously agreed dispute settlement procedure; or

(c) in accordance with the following paragraphs of this Article.

(3) (a) Subject only to subparagraphs (b) and (c), each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article.

(b) (i) The Contracting Parties listed in Annex ID do not give such unconditional consent where the Investor has previously submitted the dispute under subparagraph (2)(a) or (b).

(ii) For the sake of transparency, each Contracting Party that is listed in Annex ID shall provide a written statement of its policies, practices and conditions in this regard to the Secretariat no later than the date of the deposit of its instrument of ratification, acceptance or approval in accordance with Article 39 or the deposit of its instrument of accession in accordance with Article 41.

(c) A Contracting Party listed in Annex IA does not give such unconditional consent with respect to a dispute arising under the last sentence of Article 10(1).

(4) In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:

(a) (i) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington, 18 March 1965 (hereinafter referred to as the "ICSID Convention"), if the Contracting Party of the Investor and the Contracting Party party to the dispute are both parties to the ICSID Convention; or

(ii) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph (a)(i), under the rules governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the "Additional Facility Rules"), if the Contracting Party of the Investor or the Contracting Party party to the dispute, but not both, is a party to the ICSID Convention;

(b) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (hereinafter referred to as "UNCITRAL"); or

(c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce.

(5) (a) The consent given in paragraph (3) together with the written consent of the Investor given pursuant to paragraph (4) shall be considered to satisfy the requirement for:

(i) written consent of the parties to a dispute for purposes of Chapter II of the ICSID Convention and for purposes of the Additional Facility Rules;

(ii) an "agreement in writing" for purposes of article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958 (hereinafter referred to as the "New York Convention"); and

(iii) "the parties to a contract [to] have agreed in writing" for the purposes of article 1 of the UNCITRAL Arbitration Rules.

(b) Any arbitration under this Article shall at the request of any party to the dispute be held in a state that is a party to the New York Convention. Claims submitted to arbitration hereunder shall be considered to arise out of a commercial relationship or transaction for the purposes of article I of that Convention.

(6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.

(7) An Investor other than a natural person which has the nationality of a Contracting Party party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a "national of another Contracting State" and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a "national of another State".

(8) The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the effective enforcement in its Area of such awards.

197.

The express terms of ECT Article 26 are clear. It makes provision for the arbitration of "a dispute" or "the dispute" between the parties to it, and thus indicates an assumption that it is what might be called a ‘single’ or a ‘unitary’ dispute that will come before an arbitral tribunal. Article 26(3)(a) refers to "consent to the submission of a dispute to international arbitration", and in adding qualifications (not relevant here) to that provision, paragraphs (3)(b) and (c) refer respectively to "the dispute" and "a dispute" in the singular. Similarly, Article 26(4) addresses situations in which an Investor chooses to "submit the dispute" for resolution, referring consistently to "the dispute." Article 26(5), (7), and (8) also refer throughout to "a dispute" or "the dispute", in the singular.

198.

The only elements of the language of Article 26 that might suggest that it is possible to file multiple ‘disputes’ as a single ‘case’ appear in Article 26(1) and (2). Those paragraphs refer to "disputes", and appear to refer to disputes in the plural. Those paragraphs are, however, setting out general provisions applicable to each and every dispute "between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part II." Paragraph (1) says that such disputes (i.e., each and every dispute within the definition in paragraph (1)) "shall, if possible, be settled amicably." Paragraph (2) opens by referring to "such disputes", i.e., the disputes identified by paragraph (1): it provides (with emphasis added) that "[i]f such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution..." But its meaning would be more accurately rendered by stating that the words "if any such dispute" cannot be so settled it may be submitted for resolution. It would be completely and obviously nonsensical to say that all disputes falling with Article 26(1) must remain unsettled before any such dispute may be submitted for resolution.169

199.
The Tribunal concludes that on a reading of the text of ECT Article 26 in good faith, giving its terms their ordinary meaning in their context and in the light of the object and purpose of the ECT, it is plain that the unconditional consent of the Respondent is to the submission of "a dispute", in the singular, to international arbitration.
200.
This linguistic point is supported by consideration of the architecture of an investment treaty or an agreement such as the ECT. Such agreements do not create a standing judicial body to decide all disputes arising out of a particular event or period: instead, tribunals are constituted on an ad hoc basis as and when disputes arise, in circumstances where there is no continuing oversight by a permanent judicial body and no mechanism for coordinating the work of the individual tribunals, each of which becomes functus officio once it has rendered a final award on the particular dispute that has been submitted to it. This, too, points towards the conclusion that in principle, and subject to agreement to the contrary, each tribunal should ordinarily deal with one dispute and not with multiple disputes.
201.
The Tribunal thus agrees with the careful analysis of this issue by the Giovanni Alemanni tribunal, and its conclusion that the focus both under the ICSID Convention and under the relevant compromissory clause (in the BIT in that case, and ECT Article 26 in the present case) is on the question whether there is ‘a dispute', in the singular:170 i.e., whether what is put before a tribunal is or is not a single dispute.
202.

For these reasons, the Tribunal finds that the consent to arbitrate given in ECT Article 26, and specifically in Article 26(3) is a consent to accept the submission of a dispute to a tribunal, and does not amount to consent to submit two or more distinct disputes to a tribunal in a single proceeding. This is not a question of the ECT or the ICSID Convention or Arbitration Rules imposing "a requirement of separate consent to a multi-party arbitration", as the Claimants put it:171 it is a question of the precise scope of the Respondent’s actual consent.

203.
This leads to what are the critical questions, of how a tribunal is to distinguish between ‘a dispute’ and multiple ‘disputes’, and of the relationship between multiple parties and multiple disputes.
204.
‘Multiple parties’ and ‘multiple disputes’ are distinct concepts. The fact that there are multiple claimants does not mean that there are multiple disputes. In the present case, for instance, 20 separate operators of PV systems were registered in a single solar park - the Alcolea / Solar Andaluz plant - in order that each might benefit from the higher feed-in tariffs made available to small (under 100 kW) facilities. Such a solar park could as well have been operated by one operator, owning all of the facilities into which it was in fact divided among the 20 actual operators. In such a situation, if all 20 of the operators have the same nationality and bring the same claim under the same BIT (or the ECT), and rely on the same facts and legal arguments, there is no good reason for refusing to accept the 20 claims in a single proceeding. Furthermore, if some functions of the operation of the solar park, such as the purchase of the site and its lease to the operators, were consigned to separate companies, there is no practical difficulty that prevents their claims too being pursued in the same proceeding, though the question whether each separate claimant is entitled to compensation is, of course, a separate and subsequent question.
205.
This is the approach that was taken in the award in Giovanni Alemanni: "it is perfectly possible... for ‘a dispute’ to have more than one party on the claimant’s side. But the interest represented on each side of the dispute has to be in all essential respects identical for all of those involved on that side of the dispute."172 The Tribunal considers that to be the correct test, and indeed a test dictated by practical necessity.
206.
In circumstances where, as here, a respondent's alleged liability depends upon commitments said to have been made and representations on which investors are said to have relied, it is obvious that if different commitments or representations were made to different individual claimants, the individual claimants cannot all be grouped together for the purposes of determining liability. This is not simply a matter of quantum, with different individual claimants who all made investments in similar circumstances in a single project, but having different losses that may call for compensation. Nor is it a case where a single group of investors, all receiving and evaluating the same representations, make a series of incremental investments over time. Both of those situations can often be addressed by making a single determination on liability and drawing distinctions between the different claimants or different phases of an investment when quantum and reparation are determined. But if the relevant commitments and representations and the evaluations of those representations differ from claimant to claimant, no single determination of liability is possible. The ‘case' is in truth a bundle of distinct disputes that may be closely related in terms of their factual underpinning, but which cannot properly be said to constitute one and the same dispute.
207.
In a case such as the present, multiple claims can generally be said to constitute a single dispute where, in the case put before the tribunal, all of the claimants (i) have invested in the same project or group of related projects, and (ii) have made their investments on the basis of the same terms and representations, and (iii) advance their claims on the basis of the same legal arguments, and (iv) do so against the same respondent, who maintains the same defences against each claimant. There will usually be a significant connection between the members of the group of claimants at the times when they make their respective investments. The Respondent used the concept of ‘homogeneity’ to refer to such multiple claims within a single dispute, and the Tribunal adopts that convenient usage.
208.
This approach to the determination of whether there is a single dispute or multiple disputes is essentially a matter of procedural justice. If a member of what purports to be a single group of claimants is in a materially different factual position from the others, or relies upon or is met with materially different legal arguments in their claim or in the defence to their claim, their claim cannot properly be decided by saying that they are in the same position as the other members of the purported group: plainly, they are not.
209.
This is, of course, a question of degree. It is possible, and in practice not uncommon, to say that a particular co-claimant or claim must be treated differently from others in a case. Such a decision inevitably requires that separate consideration be given to that co-claimant or claim, distinguishing their position from that of the core of the case. It has not been suggested that a party could say in those circumstances that the separate consideration necessarily demonstrates that there is a separate dispute and that it has not consented to having two different disputes heard and decided together. It might therefore be said that if that can be done for one claimant, there is no good reason why it could not be done for each of the 116 Claimants in the present case. The point is, however, not one of practicality. The question at this stage is not whether it would be feasible for the tribunal to hear and decide all the claims together, but whether all of the claims can properly be regarded as ‘a dispute’ which the Parties have consented to be heard and decided in a single proceeding.
210.
Similarly, it does not matter that the tribunal has jurisdiction over both the claims of what might be called the homogenous group and also the claims of the heterogenous individual claimant(s). The question is not whether any or all of the claims considered individually fall within the jurisdiction of the tribunal, but whether all of the claims may be treated collectively as a single dispute. The question is whether, even if the tribunal has jurisdiction over each and every claim considered in isolation from the others, it is right for the tribunal to exercise its jurisdiction by treating all of the claims together as a single dispute.173
211.
More precisely, if the claims in the present case do not constitute a single dispute, the question is whether (a) the Respondent has consented to all of the claims in the case being heard in a single proceeding, as if it were a single dispute, and if not (b) whether the Respondent’s objection precludes the Tribunal proceeding to hear it as a single dispute.
212.
The Tribunal considers that the claims of the DSG Claimants and the claims of the TS Claimants in this case are materially different. The Tribunal asked the Claimants "[i]n respect of each Claimant, on what date(s) was the relevant investment(s) made, and on what specific representations made by (a) Respondent and (b) by any other person did each Claimant actually rely?" The Claimants’ response was helpfully set out in their Post-Hearing Brief dated 19 September 2019, at pages 21-30. Because of its importance in these proceedings, the data in that response is reproduced below. The data is reproduced here with the addition in bold of the initials or name of the Claimant who made the investment, and with the entries rearranged into chronological order.

2006
30/05Joachim Kruck ("JK") Purchase of 50% of the shares in real estate lessor Solar Andaluz Grundstucks S.L. (C-203, company renamed at C-209), which owns the land on which Project Alcolea is located (C-202). Ownership interest reduced on 15 Jan. 2008 to 25% (C-204). The company owns a right to 30% of excess profit from the sale of electricity produced by the Alcolea plants (Id.). The company also owns the right to purchase the Project Alcolea plants after twenty-five years of operation (C-246). Rolf Schumm ("RS") Purchase of 25% of the shares in real estate lessor Solar Andaluz Grundstucks S.L. through the company Monte Grace Paradise, S.L. in which he owned a 50% interest (C-206), which owns the land on which Project Alcolea is located (C-202). On 31 Oct. 2007, Monte Grace Paradise, S.L. reduced its ownership share in Solar Andaluz Grundstucks S.L. to 25%, with the result that Rolf Schumm owned a 12.5% interest in the real estate company (C-205). On 1 Aug. 2013, Rolf Schumm sold his interest in Monte Grace Paradise, S.L. and thereby Solar Andaluz Grundstucks S.L. (C-206). The company owns a right to 30% of excess profit from the sale of electricity produced by the Alcolea plants (C- 202). Frank Schumm ("FS") Purchase of 25% of the shares in real estate lessor Solar Andaluz Grundstucks S.L. through the company Monte Grace Paradise, S.L. in which he owned a 50%
interest (C-206), which owns the land on which Project Alcolea is located (C-202). On 31 Oct. 2007, Monte Grace Paradise, S.L. reduced its ownership share in Solar Andaluz Grundstucks S.L. to 25%, with the result that Frank Schumm owned a 12.5% interest in the real estate company (C-205). On 1 Aug. 2013, Frank Schumm acquired the remaining 50% interest in Monte Grace Paradise, S.L. and thereby Solar Andaluz Grundstucks S.L. (C-206), thereby owning Monte Grace Paradise, S.L.'s full 25% share of Solar Andaluz Grundstucks S.L. The company owns a right to 30% of excess profit from the sale of electricity produced by the Alcolea plants (Id.). The company also owns the right to purchase the Project Alcolea plants after twenty-five years of operation (C-246).
2007
2008
JK Acquisition of interest in right to profits from excess production from all three plants by way of his 57% ownership interest in Claimant DSG GmbH, which was acquired in 2006 (C-005, C-197, C-198). [This claim is forwarded by DSG GmbH, the party to the contract, rather than Mr. Kruck]. Peter Flaschmann ("PF") Acquisition of interest in right to profits from excess production from all three plants by way of his 43% ownership interest in Claimant DSG GmbH, which was acquired in 2006 (C-005, C-197, C-198). [This claim is forwarded by DSG GmbH, the party to the contract, rather than Mr. Flaschmann. It is mentioned here for sake of completeness in describing Mr. Flaschmann's investments.].
15/01PF Purchase of 25% of the shares in real estate lessor Solar Andaluz Grundstucks S.L. (C-204), which owns the land on which Project Alcolea is located (C-202). The company owns a right to 30% of excess profit from the sale of electricity produced by the Alcolea plants (Id.). The company also owns the right to purchase the Project Alcolea plants after twenty-five years of operation (C-246).
27/02DSG Deutsche Solargesellschaft mbH DSG Deutsche Solargesellschaft GmbH owns rights174 to 50% of excess profit from the sale of electricity produced by the Project Alcolea PV plants (C-199).
28/02Solar Andaluz 120 GmbH Purchase by each Claimant company of the assets of one of the Project Alcolea PV plants through the Claimant companies' wholly-owned Spanish subsidiaries (20 Claimants, 20 SPVs, and 20 plants in all) (C-223). Documents demonstrating Claimants' purchase of the SPVs: C-221; C-222.
27/03Ralf Hofmann ("RH") Purchase of 25% of the shares in real estate lessor Solar Andaluz Grundstucks S.L. (C-205), which owns the land on which Project Alcolea is located (C-202). The company owns a right to 30% of excess profit from the sale of electricity produced by the Alcolea plants (Id.). The company also owns the right to purchase the Project Alcolea PV plants after twenty-five years of operation (C-246).
10/04FS Purchase of 100% of the shares in Claimant Solar Andaluz 4 GmbH & Co. KG, which owns one of the Project Alcolea PV plants (C-192).
11/04JK Purchase of 100% of the shares in Claimant Solar Andaluz 3 GmbH & Co. KG, which owns one of the Project Alcolea PV plants (C-339).
RH Purchase of 100% of the shares in Claimant Solar Andaluz 1 GmbH & Co. KG, which owns one of the Project Alcolea PV plants (C-195).
17/04PF Purchase of 100% of the shares in Claimant Solar Andaluz 2 GmbH & Co. KG, which owns one of the Project Alcolea PV plants (C-193).
28/04Karsten Reiss Purchase of a 50% interest in the Project Cuenca I Bravosonnen plant (C-288). Jürgen Reiss Purchase of a 50% interest in the Project Cuenca I Bravosonnen plant (C-288).
19/05JK Purchase of 33.3% of the shares in real estate lessor Deutsche Solar Ibérica Real Estate S.L. (C- 210), which owns the right to purchase the Project Calasparra and Tordesillas plants after twenty-five years of operation (C-247, C-248). PF Purchase of 33.3% of the shares in real estate lessor Deutsche Solar Ibérica Real Estate S.L. (C-245), which owns the right to purchase the Project Calasparra and Tordesillas PV plants after twenty-five years of operation (C-247, C-248).
26/06TS Abuzaderas 1-30 GmbH Purchase by each Claimant of 100% of the shares in one of the Project Abuzaderas SPVs (for a total of 30 Claimants and 30 SPVs) (C-271). On the same day, each SPV purchased the one of the Project Abuzaderas plants (for a total of 30 plants) (C-272).
15/07DSG Deutsche Solargesellschaft mbH DSG Deutsche Solargesellschaft GmbH owns rights to 50% of excess profit from the sale of electricity produced by the Project Calasparra PV plants (C-200).
31/07RH Purchase of 33.3% of the shares in real estate lessor Deutsche Solar Ibérica Real Estate S.L. (C-249), which owns the right to purchase the Project Calasparra and Tordesillas PV plants after twenty-five years of operation (C-247, C-248).
05/08TRC Energy GmbH Purchase of four of the Project Cuenca III plants(C-297).
06/08Sunburn Verwaltungs GmbH. Purchase of ten of the Project Cuenca I plants (C- 304).
12/08TS Villalba GmbH Purchase of one of the Project Cuenca III plants (C-300).
21/08Solarpark Calasparra 251-265 Purchase by each Claimant company of 100% of the shares in one of the SPVs that owned one of the Project Calasparra plants (15 Claimants, 15 SPVs, and 15 plants in all) (C-230). Documents demonstrating that the SPVs owned the plants: C-227. Solarpark Tordesillas 401-430 GmbH Purchase by each Claimant company of 100% of the shares in one of the SPVs that owned one of the Project Tordesillas plants (30 Claimants, 30 SPVs, and 30 plants in all) (C-229). Documents demonstrating that the SPVs owned the plants: C-228.
31/08TS Cuenca zwei GmbH Purchase of two of the Project Cuenca I plants (C-282).
08/10TS Avila eins GmbH Purchase by TS Avila 1-20 GmbH each of one of the Project Avila plants (C-280). In August 2009 TS Avila 1-20 GmbH merged into Claimant TS Avila eins GmbH (C-007).
02/11DSG Deutsche Solargesellschaft mbH DSG Deutsche Solargesellschaft GmbH owns rights to 50% of excess profit from the sale of electricity produced by the Project Tordesillas PV plants (C-201).
20/11TRC Energy GmbH Purchase of one of the Project Cuenca I plants (C-293).
01/12JK Purchase of 50% of the shares in Claimant Solarpark Calasparra 253 GmbH & Co. KG, which owns one of the Project Calasparra PV plants (C-338). Mathias Kruck ("MK") Purchase of 50% of the shares in Claimant Solarpark Calasparra 253 GmbH & Co. KG, which owns one of the Project Calasparra PV plants (C-338).
29/12RH Purchase of 100% of the shares in Claimant Solarpark Tordesillas 407 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-196).
2009
10/03RH Purchase of 100% of the shares in Claimant Solarpark Calasparra 251 GmbH & Co. KG, which owns one of the Project Calasparra PV plants (C-214).
31/03RH Purchase of 100% of the shares in Claimant Solarpark Tordesillas 413 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-336).
03/04PF Purchase of 50% of the shares in Claimant Solarpark Tordesillas 418 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-194).
06/04JK Purchase of 100% of the shares in Claimant Solarpark Tordesillas 414 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-190).
23/04RH Purchase of 1% of the shares in Claimant Solarpark Tordesillas 421 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-337).
05/05JK Purchase of 43% of Claimant Solarpark Tordesillas 422 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants (C-191).
11/07Sunburn Verwaltungs GmbH Purchase of the six Project Cabeza Oliva plants (C-309).
30/09WBG GmbH Purchase of three of the Project Cuenca I plants (C-292).
2010
06/12Tauber-Solar Sierra GmbH Purchase of the two Project Pozoblanco Rooftop plants (C-314).
07/12Tauber-Solar Sierra GmbH Purchase of the two Project Pozoblanco Rooftop plants (C-314).
2011
2012
18/04ZKS GmbH Purchase of the Project Málaga Henibra plant (C-319). TS Cuenca 20 GmbH Purchase of the Project Málaga Boguar plant (C-325).
22/06TS Valtou GmbH Purchase of the Project Valtou plant (C-329).
10/07TS Cuenca 40 GmbH Purchase of the Project Juan del Valle plant (C-334).

213.
The Tribunal considers that there are significant differences between the two groups of claimants and their respective claims, which can be summarized as follows. First, there is an evident difference in the timing of the investments made by each group. With one exception, all of the DSG Claimants’ investments that are the subject of claims in this case were, according to the list in Claimants’ Post-Hearing Brief, made between 28 February 2008 (the date of the purchase of the Alcolea PV plants)175 and 5 May 2009 (the date of the purchase by Joachim Kruck of 43% of Claimant Solarpark Tordesillas 422 GmbH & Co. KG, which owns one of the Project Tordesillas PV plants).176 The one exception177 is the purchase on 30 May 2006 by Messrs. Joachim Kruck, Rolf Schumm and Frank Schumm of Solar Kruck-Schumm S.L.,178 a real estate company that was renamed Solar Andaluz Grundstücks S.L in 2007,179 and the purchase by Mr. Peter Flachsmann of an interest in the same company on 15 January 2008.180
214.
Furthermore, the core DSG Claimants’ investments in the PV plants were completed by the end of August 2008, before the closure of registration under RD 661/2007 and before the enactment of RD 1578/2008, both of which are significant events in this case. The DSG Claimants’ investments in the Claimants’ list with dates after August 2008 are purchases by individual DSG Claimants of shares in various DSG Claimant companies that already held rights in relation to PV plants: they are not transactions concerning investment in new or additional PV plants.
215.
The earliest investment by TS Claimants identified in the list in the Claimants’ Post-Hearing Brief is the purchase by Messrs. Karsten Reiss and Jürgen Reiss from Accener S.L. of the Project Cueca I Bravosonnen plant on 28 April 2008.181 There were other purchases of Cuenca and Avila plants in June, August, October, and November 2008, and then in July and September 2009 and December 2010, and then in April and June 2012. The latest TS Claimants’ investment in the list is the purchase by Claimant TS Investors Cuenca 40 GmbH from the non-claimant company, Elements Energy S.L, of a PV facility in Juan del Valle, on 10 July 2012. Some of those purchases thus occurred after the significant legislative changes introduced by RD 1578/2008 (September 2008), RD 1565/2010 (23 November 2010) and RD 1614/2010 and RDL 14/2010 (December 2010).
216.
Given the distribution of these dates it is not surprising that the claims advanced by the two groups of Claimants have different bases, as is evident from the Notice of Legal Dispute given by each group to the Respondent.182 The Notice presented by the DSG Claimants states "[s]pecifically, the German Investors developed their plants in reliance on the remunerative regime established in Royal Decree 661/2007 of May 25, 2007, regulating the activity of electrical energy generation by means of renewable facilities.."183 The Notice presented by the TS Claimants is less simple. It states

The TS Investors Group made all of the foregoing investments in Spain in reliance on certain incentive regimes that Spain specifically established to attract the type of projects that the TS Investors Group owns and operates. The TS Investors Group developed or acquired six of the projects mentioned above — Cuenca I, Cuenca III, Cabeza Oliva, Pozoblanco Rooftop, Abuzaderas and Gotarrendura — with the expectation that those parks would benefit from the remunerative regime established in Royal Decree 661/2007 of May 25, 2007, regulating the activity of electrical energy generation by means of renewable facilities ("RD 661"). TS Investors Group expected its four additional solar projects — Henibra, Boguar, Valtou and Juan del Valle — to benefit from the remunerative regime established in Royal Decree 1578/2008 of September 26, 2008 ("RD 1578").

Both RD 661 and RD 1578 contained attractive remuneration schemes that made creating photovoltaic facilities in Spain worthwhile and economically viable. The TS Investors Group would not have invested in Spain by acquiring and developing those photovoltaic facilities in the absence of the incentives included in that legislation.184

217.
The Tribunal notes, furthermore, that in principle it is possible that the conduct of a party after a certain date may cast important light on its earlier views, held before that date: for example, it might be argued that the Claimants' attitude towards investments in 2012 casts light on its view of the significance and effect of RD 661/2007 and of the reforms in the electricity regime in 2010. Accordingly, it is not possible simply to group the TS Claimants' investments made under RD 661/2007 together with the DSG Claimants' investments made under RD 661/2007 and separately from the TS Claimants' investments made after the enactment of RD 1578/2008: the two groups of investors may have had different perspectives on the regulatory regime.
218.
A second difference concerns the business background of the organizers of the two groups. The investments in the group of DSG Claimants were initiated and organized by Mr. Joachim Kruck and his father Mathias Kruck and long-term acquaintance Mr. Frank Schumm and his father Rolf Schumm,185 all of whom were involved in the real estate business in Heilbronn, and Mr. Ralf Hofmann, a technical expert with what is now KACO new energy GmbH, who had experience of selling inverters (an essential component of PV facilities) in Spain and of the technology involved in PV project development. They were joined by Peter Flachsmann, a German investor serving as CEO of KACO in North America. The Notice of Legal Dispute sent to the Respondent in respect of the DSG claims says that "the German Investors have invested in land and renewable energy facilities in Spain since 2007."186
219.
The TS Claimants had a deeper history of involvement in solar energy. Incorporated by four entrepreneurs, Messrs Klaus-Bruno Fleck, Zeno Fleck, Thomas Schmiedel, and Dr. Leonhard Haaf, in 2001 after initially developing three small rooftop PV projects, Tauber Solar now develops, finances, manages, and operates solar power facilities across Europe. The Memorial asserts that "with the help of over 3,200 partners and investors, they have funded over 500 solar power plants with an aggregate capacity of over 175 MWp."187 The Notice of Legal Dispute sent to the Respondent in respect of the TS claims says that "[t]he individuals and companies comprising the TS Investors Group specialize in financing and operating renewable energy facilities in European countries."188
220.
The Tribunal emphasizes that to note this difference is not to say that it would have had any decisive impact upon the Tribunal’s analysis or upon the legal positions of the various Claimants. It is, however, an objective difference of a kind that puts in question the propriety of treating all 116 Claimants alike, as a single group.
221.
To this must be added four other material facts:

a. the DSG Claimants and the TS Claimants were at no stage prior to these proceedings in contact with one another;

b. there is no evidence that they shared a one and the same approach to their respective investments or common facilities;

c. they did not invest in the same projects; and

d. the two groups took their advice from different sources and in different ways and at different times.189

222.

The Preliminary Award on Jurisdiction in the PV Investors case190 contains a careful and detailed consideration of the question of multiple claims, reviewing earlier decisions on the topic. The PV Investors tribunal distinguished between "aggregate proceedings", in which multiple, individual claimants bring claims in their own name ab initio in one single arbitration, and "consolidation", in which pending parallel proceedings are joined into a single one, finding that the joinder of claims in consolidation requires specific consent but that aggregate proceedings do not.191 Importantly, however, the PV Investors tribunal referred to the need for a "sufficient connection" between the claimants in that case. It said,

... the Tribunal is satisfied that a sufficient connection exists between them to justify hearing the Claimants’ claims in one single arbitration. The Claimants complain of the same measures taken by Spain in relation to the PV sector, which they allege have negatively affected their investments. In addition, they invoke the same Treaty provisions and claim the same type of relief. Thus, the Tribunal does not believe that any diversities in the Claimants’ situations would make the proceedings unmanageable or unworkable.192

223.
That finding of a "sufficient connection" between the individual claimants distinguishes the PV Investors case from the present case. The Tribunal considers that in the present case the combined effect of the differences between the claims in the present case leads to the conclusion that the DSG claims and the TS claims must be regarded as two separate disputes. Recalling the indicative criteria listed in paragraph 207, above, the two groups are entirely separate in membership and organization; and they did not invest in the same project or range of projects. There are two distinct disputes within the Request for Arbitration in this case.
224.
It is of course true that the DSG claims and the TS claims are all rooted in the Spanish regime applicable to the production and distribution of energy from solar (PV) facilities and the changes in that regime that occurred between 2004 and 2014. It is also true, to make the point again, that both sets of claims could be heard and determined in a single proceeding if the Parties so agreed. It is also plain that both sets of Claimants may wish, perhaps for reasons of efficiency and economy, to combine their claims in a single case: and that they could do, if the Parties, including the Respondent, agreed. The point is, however, that the Parties have not so agreed.
225.
It is clear that throughout the entire course of these proceedings the Respondent has maintained its objection to the hearing together of what it describes as multiple disputes. It has not consented to the hearing together of the DSG claims and the TS claims.
226.
The application in this case in respect of the two sets of claims, which is according to the Tribunal's analysis an application in respect of two distinct disputes, accordingly cannot proceed in the form in which it is presented.
227.

As was noted above, this might be described as a being the result of a jurisdictional defect, because the Claimants have not accepted the ‘offer' to arbitrate made by the Respondent in ECT Article 26 but have in effect proposed an alternative mode of arbitration of disputes, permitting the concurrent handling of a number of disparate disputes in a single proceeding, to which the Respondent has not agreed.

228.
It may also be described as a defect relating to the admissibility of the application. As was made clear above, the labels "DSG Claimants" and "TS Claimants" are no more than convenient terms to describe two groups of 73 and 43 separate claims. Legally, the application must be regarded as a set of 116 applications by 116 separate Claimants seeking the hearing of their claims in a single proceeding. To say that the Tribunal does not have jurisdiction over the ‘case' that consists in the claims of those 116 Claimants would be to accept the very characterization of these proceedings as a single dispute that the Tribunal has rejected, as was explained above. The Tribunal might, for instance, have jurisdiction over most, if not all, of these 116 claims, if each of them were considered individually and in isolation from the others.193 The problem at this point in our analysis lies not in the Tribunal's lack of jurisdiction over any of the individual claims which have been collected together in the application in this case, but rather in the absence of consent on the part of the Respondent to the exercise of jurisdiction over all of those claims in a single proceeding. On this view, it is a question of the admissibility of the application.
229.
The Tribunal does not consider it necessary to decide whether the question is to be classified as one relating to jurisdiction or to admissibility, because the practical result in the context of this case is the same whichever classification is adopted. The Tribunal is conscious that there may be arguments that the jurisdiction / admissibility distinction has critical significance in some contexts and does not wish to foreclose any such arguments: it therefore makes no decision on this question of classification.194
230.
The Tribunal has considered whether it is right to treat all 73 DSG Claimants as one single group, and all 43 TS Claimants as another. While it recognizes that individual Claimants within each group made their investments at different times and in different PV plants, it is evident that each of the two groups was separately organized and that all members of each group were linked together in pursuing a distinct investment project. The companies and PV facilities and organizers of each group can be readily identified. Each group is sufficiently cohesive and homogenous to be treated in the present context as a single applicant. Moreover, the Claimants in each group identified themselves as such and chose to present their claims to the Tribunal as such. The TS Claimants were referred to in the Notice of Legal Dispute dated 11 August 2014 in the singular, as "the TS Investors Group",195 and the DSG Claimants have also been presented as a single group in these proceedings. As it was put in the Claimant’s Response to Preliminary Objections, "[w]ithin each of those informal ‘groups,’ Claimants are related in that they share common promoters and managers of their investments and often share ownership in the same photovoltaic facilities."196
231.
Conversely, although there is some overlap in the timing of the investments made by each of the two groups in 2008, there are no other material factual overlaps between the two sets of Claimants, and no facts or legal considerations that would warrant separating out some of the investors from one of the two groups and treating them along with all of the investors in the other group. The Tribunal is accordingly satisfied that it is right to consider the application in this case as an application in respect of two distinct disputes, one consisting of the claims of the 73 DSG Claimants, and the other of the 43 claims of the TS Claimants.
232.
The Tribunal must decide how to proceed in these circumstances. Article 44 of the ICSID Convention gives it the power and the duty to do so; and the Tribunal exercises it conscious of its responsibilities for the procedural fairness and efficiency of the arbitration.
233.
The Tribunal considers that it has been presented with two separate disputes and that, in the absence of agreement between the Parties, the mandate provided by ECT Article 26 allows the Tribunal to decide only one of them. The question then arises: which dispute, if any, can or should the Tribunal decide? It would be absurd to decline jurisdiction over both disputes simply because the Tribunal’s mandate is limited to the resolution of a single dispute. The Tribunal has the right, and indeed the duty, to proceed to resolve a dispute that has been validly submitted to it. As each dispute could have independently been validly submitted to this Tribunal, it follows that the Tribunal can proceed to determine the merits of one dispute and decline to exercise its jurisdiction over the other. It can do so by exercising its general case management powers.
234.
Several features of this case point to permitting the dispute involving the DSG claims to proceed and ruling that the dispute involving TS claims may not proceed. The DSG claims were the first in time in two senses. The DSG Claimants dispute was notified to the Respondent by a letter dated 17 June 2014, referring to the DSG Claimants as the "German Investors."197 Notice of the TS Claimants dispute was given to the Respondent by a letter dated 11 August 2014.198 Apart from the fact that much of the TS Claimants’ Notice was cut-and-pasted, with the necessary changes to the factual details, from the DSG Claimants’ Notice, the TS Claimants’ Notice contains no reference to the DSG Claimants’ Notice and does not suggest that the TS claims are a continuation or extension of the DSG claims. The TS claims are treated as a separate, and later, dispute.
235.
The TS claims are later than the DSG claims also in the sense that, although there is an overlap in 2008, the TS Claimants' investments were made over a period later than that during which the DSG Claimants' investments were made.
236.
There is, accordingly, an argument of temporal priority in allowing the DSG claims to proceed. The DSG claims were the first to be notified to the Respondent, were presented first in the Claimants' Memorial, and (though this factor is not decisive) related to the first investments to be made. Had they not been supplemented by the TS claims, these questions of jurisdiction and admissibility would not have arisen.
237.
There is also an argument to the same effect based upon the practicalities of the presentation of the case. The Respondent has had to respond to submissions concerning the significance and effect of RD 661/2007 that are common to both the DSG and the TS claims. The matters to be addressed in the TS claims, in contrast, are not confined to RD 661/2007 but are more extended, both legally and factually. Admitting the more limited set of claims is, in the view of the Tribunal, the more prudent and more practical course, and this consideration reinforces, rather than undermines, the Tribunal's decision based on questions of legal principle.
238.
The Tribunal accordingly decides that it will proceed to determine the dispute involving the claims presented by the DSG Claimants, but not the dispute relating to the claims presented by the TS Claimants. As was noted above,199 there remain questions of jurisdiction to be addressed in respect of each separate DSG Claimant - as, of course, do questions relating to the merits of their claims.
239.
For the avoidance of doubt, the Tribunal emphasizes that it makes no findings in respect of the TS claims, and that nothing in this Decision or in the Award to be rendered in respect of the DSG claims has any determinative or preclusive effect in relation to the TS Claimants or their claims.
240.
The Tribunal is aware that if the claims had been separated at the outset of this case the Respondent might have presented its responses to both sets of claims differently from the written and oral submissions that it in fact made in these proceedings. While the same might be said of the claims presented by the two groups of Claimants, their position is different because it was their free choice to present their claims together in a single set of submissions, and they resisted the Respondent’s attempts to prevent that. The Claimants may therefore be regarded as being satisfied that their chosen approach to this litigation allowed a proper opportunity for the presentation of their case.
241.
These proceedings could have been bifurcated, so as to resolve questions of admissibility and jurisdiction at the outset. The Respondent explained that it did not submit a bifurcation request because it considered the heterogeneity of the Claimants to be "a matter whose study is inseparable from the merits of the arbitration proceeding";200 but it maintained that the heterogeneity "has created a misunderstanding in the proper analysis of the case, thus preventing Respondent from articulating a more detailed defence."201 Indeed, the Tribunal itself has not found it easy to separate out the threads of the individual claims that run through the rather generalized presentation of the Claimants’ cases.
243.
The written submissions should be as concise as possible and should focus on explaining clearly any features of the Party’s case that are specific to one or more of the DSG Claimants, and which the Party considers that it did not have an adequate opportunity to emphasize and distinguish from the submissions that it has made in relation to the DSG and TS claims as a whole. The submissions should assume (i) that the Tribunal is familiar with all of the written and oral submissions already made, and (ii) that it is unnecessary to make any further submissions in relation to matters that are not affected by the identities of the Claimants, such as the status and interpretation of Spanish laws and decrees. The DGS Claimants should file their submission by Monday, 31 May 2021, and the Respondent should file its submission by Monday, 12 July 2021.202
244.
Existing submissions stand in the record, and these written submissions are intended to serve as aids to understanding them properly in the context of a case confined to the DSG claims. This is not intended to be an opportunity to present a wholly new case, materially different from that already put before the Tribunal. Any request to introduce or respond to any novel arguments or new evidence should be made separately to the Tribunal. The Tribunal will proceed to address the merits of the DSG claims once any submissions have been received.

b. Jurisdiction over the DSG Claimants

245.

As was indicated above, the Tribunal will now address the question whether it has jurisdiction ratione personae over each of the DSG Claimants. Jurisdiction ratione personae exists under ECT Article 26(1) if there is a dispute "between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III" of the ECT. An "Investor" is defined in ECT Article 1(7). So far as is material it reads as follows:

"Investor" means:

(a) with respect to a Contracting Party:

(i) a natural person having the citizenship or nationality of or who is permanently residing in that Contracting Party in accordance with its applicable law;

(ii) a company or other organisation organised in accordance with the law applicable in that Contracting Party

246.
To take the question of nationality and the individual claimants (Claimants 68-73) first, the German nationality of Messrs. Mathias Kruck, Joachim Kruck, Peter Flachsmann, Ralf Hofmann, Rolf Schumm, and Frank Schumm has been established by presentation of their passports or identity cards.203 As nationals of one ECT Contracting Party bringing an ECT claim against another ECT Contracting Party, the Tribunal therefore decides that it has jurisdiction ratione personae over their claims under ECT Article 26.
247.

The registration certificates of Claimants 66 and 67,204 the private companies DSG Deutsche Solargesellschaft mbH and Kruck Beteiligungs GmbH (later renamed DSG Spanien Verwaltungs GmbH205), have established their German nationality. So, too, have the registration certificates of Claimants 1-65, the limited liability partnerships Solar Andaluz 1-20 GmbH & Co. KG, Solarpark Calasparra 251-265 GmbH & Co. KG, and Solarpark Tordesillas 401-430 GmbH & Co. KG.206 Each being a "company or other organization organized in accordance with the law applicable in [Germany]", these companies and limited partnerships fall within the definition of an investor in ECT Article 1(7)(a)(ii). As nationals of Germany, the Claimants are also "nationals of another Contracting State" within the meaning of Article 25 of the ICSID Convention. The Tribunal therefore decides that it has jurisdiction ratione personae over these Claimants under ECT Article 26 and Article 25 of the ICSID Convention.

248.
There is no additional criterion for qualification as an "Investor" but in order to fall within ECT Article 26 it is necessary that the dispute relate to an "Investment" of the Investor in "the Area" of another Contracting Party. The DSG Claimants’ purported investments were all in Spain, so the latter part of that requirement is met and the sole remaining question on jurisdiction is whether each of the DSG Claimants did indeed make an "Investment" in Spain.
249.

ECT Article 1(6) sets out the definition of an "investment." Together with its accompanying ‘Understanding’, it reads as follows:

(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;

(e) Returns;

(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.

A change in the form in which assets are invested does not affect their character as investments and the term "Investment" includes all investments, whether existing at or made after the later of the date of entry into force of this Treaty for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the "Effective Date") provided that the Treaty shall only apply to matters affecting such investments after the Effective Date.

"Investment" refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as "Charter efficiency projects" and so notified to the Secretariat.

[UNDERSTANDING] With respect to Article 1(6)

For greater clarity as to whether an Investment made in the Area of one Contracting Party is controlled, directly or indirectly, by an Investor of any other Contracting Party, control of an Investment means control in fact, determined after an examination of the actual circumstances in each situation. In any such examination, all relevant factors should be considered, including the Investor’s

(a) financial interest, including equity interest, in the Investment;

(b) ability to exercise substantial influence over the management and operation of the Investment; and

(c) ability to exercise substantial influence over the selection of members of the board of directors or any other managing body.

Where there is doubt as to whether an Investor controls, directly or indirectly, an Investment, an Investor claiming such control has the burden of proof that such control exists.

250.
While there are important questions as to the timing and the precise nature of the investments of each of the DSG Claimants, and the relationship between the various DSG Claimants, to be addressed in due course, their status as "Investors", and the fact that the dispute relates to their "Investments" is well established.
251.
The DSG Claimants' investments were conveniently summarized in the Claimants' Memorial in a table reproduced here:
DSG Claimants' Investments
NoClaimantProject(s)Investment and Ownership ShareAllocation of Compensation Claimed
1-20 Solar Andaluz 1-20 GmbH & Co. KG (the "Alcolea Claimants'") Alcolea Each Alcolea Claimant owns 100% of a Spanish SPV and one of the twenty 100 kW PV facilities comprising this Project Each Alcolea Claimant claims 5% of the harm caused to Project Alcolea for the first 25 years of operation, reflecting its shareholding in Alcolea
21- 35 Solarpark Calasparra 251-265 GmbH & Co. KG (the "Calasparra Claimants") Calasparra Each Calasparra Claimant owns 100% of a Spanish SPV and one 100 kW of the fifteen 100 kW PV facilities comprising this Project Each Calasparra Claimant claims 6.67% of the harm caused to Project Calasparra for the first 25 years of operation, reflecting its shareholding in Calasparra
36- 65 Solarpark Tordesillas 401-430 GmbH & Co. KG (the "Tordesillas Claimants") Tordesillas Each Tordesillas Claimant owns 100% of a Spanish SPV and one of the thirty 100 kW PV facilities comprising this Project Each Tordesillas Claimant claims 3.33% of the harm caused to Project Tordesillas for the first 25 years of operation, reflecting its shareholding in Tordesillas
66 DSG Deutsche Solargesellschaft mbH ("DSG GmbH") Alcolea. Calasparra. and Tordesillas Claims to bonus payments resulting from higher-than-projected revenue when Projects Alcolea. Calasparra. and Tordesillas surpass projected electricity production 100% of the harm caused to DSG GmbH as a result of lost bonus payments from Alcolea, Calasparra. and Tordesillas
67 DSG Spanien Verwaltungs GmbH ("DSG Spain") Alcolea. Calasparra. and Tordesillas Indirect Interests in the Alcolea. Calasparra. and Tordesillas Claimants as their General Partner None - compensation for this claim is covered through the compensation allocated to the Alcolea. Calasparra. and Tordesillas Claimants
68 Mathias Kruck Calasparra 50% of Claimant Solarpark Calasparra 253 GmbH & Co. KG None - compensation for this claim is covered through the compensation allocated to Claimant Solarpark Calasparra 253 GmbH & Co. KG

69 Joachim Kruck Alcolea 100% of Claimant Solar Andaluz 3 GmbH & Co. KG None - compensation for this claim is covered through the compensation allocated to Claimant Solar Andaluz 3 GmbH & Co. KG
25% of real estate lessor. Solar Andaluz Grundstücks S.L., related bonus payments, and purchase right 25% of the harm caused to Solar Andaluz Grundstücks S.L.
Calasparra 50% of Claimant Solarpark Calasparra 253 GmbH & Co. KG None - compensation for this claim is covered through the compensation allocated to Claimant Solarpark Calasparra 253 GmbH & Co. KG
Tordesillas 100% of Claimant Solarpark Tordesillas 414 GmbH & Co. KG None - compensation for this claim is covered through the compensation allocated to Claimant Solarpark Tordesillas 414 GmbH & Co. KG
43% of Claimant Solarpark Tordesillas 422 GmbH & Co. KG None - compensation for this claim is covered through the compensation allocated to Claimant Solarpark Tordesillas 422 GmbH & Co. KG
Alcolea. Calasparra. and Tordesillas 57% of Claimant DSG GmbH None - compensation for this claim is covered through the compensation allocated to Claimant DSG GmbH
Calasparra & Tordesillas 33.3% of real estate lessor. Deutsche Solar Ibérica Real Estate S.L. and related purchase rights 33.3% of the harm caused to Deutsche Solar Ibérica Real Estate S.L.
70 Peter Flachsmann Alcolea 100% of Claimant Solar Andaluz 2 GmbH & Co. KG None - compensation claimed through Claimant Solar Andaluz 2 GmbH & Co. KG
25% of real estate lessor. Solar Andaluz Grundstücks S.L., related bonus payments, and purchase right 25% of the harm caused to Solar Andaluz Grundstücks S.L.
Tordesillas 50% of Claimant Solarpark Tordesillas 418 GmbH & Co. KG None — compensation claimed through Claimant Solarpark Tordesillas 418 GmbH & Co. KG
Alcolea. Calasparra. and Tordesillas 43% of Claimant DSG GmbH None — compensation claimed through Claimant DSG GmbH
Calasparra and Tordesillas 33.3% of Deutsche Solar Ibérica Real Estate S.L. and related purchase rights 33.3% of the harm caused to Deutsche Solar Ibérica Real Estate S.L.

71Ralf Hofmann Alcolea 100% of Claimant Solar Andaluz 1 GmbH & Co. KG None — compensation claimed through Claimant Solar Andaluz 1 GmbH & Co. KG
Calasparra 100% of Claimant Solarpark Calasparra 251 GmbH & Co. KG None — compensation claimed through Claimant Solarpark Calasparra 251 GmbH & Co. KG
Tordesillas 100% of Claimants Solarpark Tordesillas 407 GmbH & Co. KG and Solarpark Tordesillas 413 GmbH & Co. KG and 1% of Claimant Solarpark Tordesillas 421 GmbH & Co. KG None - compensation claimed through relevant Tordesillas Claimants
Alcolea 25% of real estate lessor. Solar Andaluz Grundstücks S.L. and related bonus payments and purchase right 25% of the harm caused to Solar Andaluz Grundstücks S.L.
Calasparrra and Tordesillas 33.3% of Deutsche Solar Ibénca Real Estate S.L. and related purchase rights 33.3% of the harm caused to Deutsche Solar Ibérica Real Estate S.L.
72 Rolf Schumm Alcolea 12.5% of real estate lessor. Solar Andaluz Grundstücks S.L., related bonus payments, and purchase right (until August 1, 2013) 12.5% of the harm caused to Solar Andaluz Grundstücks S.L.
73 Frank Schumm Alcolea 100% of Claimant Solar Andaluz 4 GmbH & Co. KG None - compensation for this loss is covered through the compensation allocated to Claimant Solar Andaluz 4 GmbH & Co. KG
12.5% of real estate lessor. Solar Andaluz Grundstücks S.L., related bonus payments, and purchase right (until August 1, 2013) 12.5% of the harm caused to Solar Andaluz Grundstücks S.L.

252.
The fact of these investments was not challenged by the Respondent, although their characterization as "Investments" and the possibility of them serving as the basis of a claim in this case was disputed. Those matters are most easily considered along with other substantive questions, and will therefore be addressed later, along with questions of merits and quantum.
253.
The Tribunal determines, with the reservation in the preceding paragraph concerning the status of their "Investments", that it has jurisdiction ratione personae over the DSG Claimants, and can proceed to consider the merits of their claims, subject to the remaining objections to jurisdiction, which are addressed next.

B. The Intra-EU Objection

(1) The Parties’ Positions

a. Respondent’s Position