|2010 Agreement||An alleged agreement entered into between Spain and the wind and thermosolar associations which led to the implementation of RD 1614/2010.|
|2011 SPA||Share purchase and share agreement Renovalia Energy S.A. and Renovalia Wind 2 S.L. and FREIF Eurowind Holdings Limited as Vendor and New Leads Investment, S.L.U. as Purchaser dated 14 October 2011.|
|2019 SPA||"Project Castilla" Share Sale and Purchase Agreement between RENOVALIA RESERVE SL (Seller), ARDIAN (Purchaser) and GEPIF and RENOVALIA WIND 2 (Shareholders) dated 1 May 2019.|
|Achmea||Judgment of ECJ, Case C-284/16, Republic of Slovakia/Achmea BV. 6 March 2018.|
|AEE||Spanish Wind Energy Association|
|AET||Average Electricity Tariff|
|APPA||Association of Renewable Energy Producers|
|Arbitration||The present dispute before the Tribunal|
|Ardian||Ardian Infrastructure Fund V S.C.A., SICAR, and Ardian Infrastructure Fund V B S.C.S., SICAV-RAIF together.|
|Asset Sale||The sale of FREIF and Renovalia's shares and shareholder loan interests in Renovalia Reserve to Ardian Infrastructure Fund V S.C.A., SICAR, and Ardian Infrastructure Fund V B S.C.S., SICAV-RAIF on 1 May 2019.|
|BIT||Bilateral Investment Treaty|
|Claimant||FREIF Eurowind Holdings Ltd|
|CNE||National Energy Commission. The Regulatory Body of the energy systems in Spain (as from 7 October 2013, its functions have been assumed by the National Markets and Competition Commission).|
|CPI||Consumer Price Index|
|DCF||Discounted cash flow|
|ECJ||European Court of Justice|
|ECT||Energy Charter Treaty|
|FET||Fair and equitable treatment under Article 10(1) of the ECT|
|FREIF||FREIF Eurowind Holdings Ltd|
|IAC||International Arbitration Centre, London|
|ICC||International Chamber of Commerce|
|ICSID||International Centre for Settlement of Investment Disputes|
|IDAE||Institute for the Diversification and Saving of Energy|
|IRR||Internal Rate of Return|
|Linklaters Memorandum||Linklaters Regulatory Risk Memorandum dated 8 June 2011|
|New Regulatory Regime||RDL 9/2013, Law 24/2013, RD 413/2014, and MO IET/1045/2014|
|ORIE||Regional Economic Integration Organisation|
|Original Regulatory Regime||Law 54/1997 and related laws and regulations including, RD 2818/1998, RD 436/2004, RDL 7/2006, and RD 661/2007, RDL 6/2009, RD 1565/2010, RD 1614/2010, and RDL 14/2010.|
|PANER||National Renewable Energy Action Plan in Spain 2011-2020|
|Parties||FREIF and Spain|
|PER||Renewable Energy Plan in Spain 2005-2010|
|RAIPRE||Administrative Registry for Special Regime Generation Facilities|
|Respondent||The Kingdom of Spain|
|SCC||Arbitration Institution of the Stockholm Chamber of Commerce|
|SCC Board||Board of Directors of the SCC|
|SCC Rules||Arbitration Rules of the SCC in force as from 1 January 2017.|
|SES||Spanish Electricity System|
|Spain||The Kingdom of Spain|
|Spanish Lawsuits||Contentious-Administrative Appeal Application dated 9 September 2014 filed by DEMEPI before the Spanish Supreme Court against Royal Decree 413/2004 and Ministerial Order 1045/2014.13, and Contentious-Administrative Appeal Application filed by EACLM and ENERDUERO on 9 September 2014 before the Spanish Supreme Court against Royal Decree 413/2004 and Ministerial Order 1045/201416.|
|Special Regime||A regime governing electricity generators from renewable energy sources, cogeneration, and waste facilities under 100 MW, created by RD 2366/1994.|
|TEU||Treaty on European Union|
|TFEU||Treaty on the Functioning of the European Union|
|Tribunal||Professor Douglas Jones AO, Professor Thomas Clay and Professor Dr Kaj Hobér until 14 December 2019. Professor Douglas Jones AO, Professor Thomas Clay and Mr C. Mark Baker from 7 January 2020.|
|TVPEE||Tax on the value of the production of electrical energy. Created with validity beginning 1 January 2013 by Act 15/2012, and governed by Articles 1 to 11 of said Act 15/2012.|
|VCLT||Vienna Convention on the Law of Treaties|
(a) it has jurisdiction under the ECT for all of FREIF's claims, with the exception that it has no jurisdiction to determine whether the tax imposed by Law 15/2012 violates Spain's obligations to FREIF's investment under the ECT.
(b) Spain has not violated Part III of the ECT and international law with respect to FREIF's investments.
(c) FREIF is to pay Spain the costs it has incurred and Spain's share of the Costs of the Arbitration. Simple interest shall accrue from the date of the award to the date of payment at the rate of the Spanish Government 10-year bond yield.
(a) Mr Kenneth R. Fleuriet;
(b) Mr Reginald R. Smith;
(c) Mr Kevin D. Mohr;
(d) Ms Amy Roebuck Frey;
(e) Ms Héloïse Hervé;
(f) Mr Christopher S. Smith;
(g) Mr Enrique J. Molina; and
(h) Ms Isabel San Martín
of King & Spalding, with its offices at 1700 Pennsylvania Ave., NW 2nd Floor Washington, D.C. 20006, USA; 1100 Louisiana Street, Suite 4000, Houston, Texas, 77002, USA; and 12 Cours Albert 1er, 75008, Paris, France; and
(i) Ms Verónica Romaní Sancho;
(j) Mr Luis Gil Bueno;
(k) Ms Inés Vázquez García;
(l) Ms Teresa Gutiérrez Chacón;
(m) Ms Inés Puig-Samper; and
(n) Ms Cristina Matia Garay.
of Gómez-Acebo & Pombo, Castellana, 216, 28046, Madrid, Spain.
(a) Mr José Manuel Gutiérrez Delgado;
(b) Ms Gabriela Cerdeiras Megias;
(c) Mr Pablo Elena Abad;
(d) Ms Lorena Fatas Pérez;
(e) Mr Antolín Fernández Antuña;
(f) Mr Roberto Fernández Castilla;
(g) Ms Ana Fernández-Daza Alvarez;
(h) Ms Patricia Froehlingsdorf Nicolás;
(i) Ms María del Socorro Garrido Moreno;
(j) Mr Rafael Gil Nievas;
(k) Ms Lourdes Martinez de Victoria Gómez;
(l) Ms Mónica Moraleda Saceda;
(m) Ms Elena Oñoro Sainz;
(n) Mr Mariano Rojo Pérez;
(o) Mr Diego Santacruz Descartín;
(p) Ms Alicia Segovia Marco; and
(q) Mr Alberto Torró Molés
of the Attorney General's Office of the Ministry of Justice, with its offices at Marqués de la Ensenada, 14-16, 2ª planta, 28004, Madrid, Spain.
This Arbitration is brought pursuant to Article 26(4)(c) of the ECT, in which the Parties consented to submitting disputes to international arbitration at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Article 26 of the ECT provides in full:
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.
(a) Mr C. Mark Baker, who was appointed as Co-Arbitrator by FREIF on 7 January 2020 pursuant to Article 21(1) of the SCC Rules.6
(b) Professor Thomas Clay who was appointed as Co-Arbitrator by Spain on 22 May 2017, pursuant to Article 17(4) of the SCC Rules;7 and
(c) Professor Douglas Jones AO who was appointed as Chairperson by the SCC Board on 10 October 2017, pursuant to Article 17(4) of the SCC Rules.8
(a) provide comments on certain matters for procedural directions; and
(b) provide the Tribunal with proof of authority granted to its representatives in these proceedings in the form of a duly executed power of attorney.
I am unconvinced that the interests of the Parties or the fair and proper conduct of the arbitration require me to step down. In any event, I consider that there are some major matters of relevance which tend towards the conclusion that I should remain as Chairman.
First, there is an inevitable cost and delay associated with my resignation. The Parties or the SCC would then have to agree to a new Chairman, at a time when Procedural Order No. 1 has just been formally issued, dates have been set and reserved for various matters, and the arbitration is commencing. Restarting this whole process could delay the proceedings by many months, and as the adage goes, 'justice delayed is justice denied'.
Second, there is no guarantee that if I resign, another Spanish-speaking Chairman will be found. In this regard, it is noted that the SCC unsuccessfully attempted to find a Spanish-speaking arbitrator.
Consequently, when I weigh together the high likelihood that my resignation would cause inconvenience together with the low likelihood of finding a new Chairman proficient in Spanish, alongside the matters discussed above regarding both Parties' ability to receive a fair Hearing, I conclude that it would not be in the interests of the efficient, economical and expeditious resolution of the arbitration for me to resign my position.
I should however make it clear that were the Parties to agree upon a replacement Chair bilingual in English and Spanish, I would accede readily to their joint request to resign.
2.1 Pursuant to Article 3 of the SCC Arbitration Rules, the SCC, the Arbitral Tribunal and any administrative secretary of the Arbitral Tribunal shall maintain the confidentiality of the arbitration and the award.
2.2 The Parties, the SCC, the Arbitral Tribunal and Administrative Secretary of the Arbitral Tribunal shall maintain the confidentiality of all oral and written submissions by the Parties or their witnesses and experts and their accompanying documents but not of the Arbitration and the award.
G3 Disclosure of Documents
• On 11 October 2019, Spain will submit its final requests for document production.
• On 28 October 2019, FREIF will produce documents pursuant to those requests to which it has no objection. FREIF will also communicate to the Tribunal its objections to any contested document requests on this date.
• The Tribunal will decide on any contested document requests on 6 November 2019.
• Documents which remain to be produced following the Tribunal's orders will be produced on 13 November 2019.
• On 25 November 2019, the Parties may submit a brief update on quantum and on any other relevant issues arising from the asset sale. The brief update may include an updated valuation of the quantum claimed by the Parties' experts.
(a) the suspension of the scheduled Hearing;
(b) FREIF to provide complete and exhaustive information regarding the sale of the wind farms; and
(c) a subsequent and limited document production phase followed by a single round of written submissions.
On 12 November 2019, Spain formally submitted its challenge to Professor Dr Hobér.161 The SCC instructed FREIF to respond to Spain's challenge to Professor Dr Hobér.162 On 22 November 2019, FREIF provided its response and supporting documentation.163 On the same day, Professor Dr Hobér provided his comments on Spain's challenge.164 On 5 December 2019, Spain filed a supplementation to its challenge to Professor Dr Hobér, contending that Professor Dr Hobér's Dissenting Opinion in the recently released ICSID Award in Stadtwerke München GmbH, RWE Innogy GmbH and Others v. Kingdom of Spain (Stadtwerke München) resulted in him having a prejudgment of the issues of this Arbitration in a previous arbitration.165
(a) Mr Reginald Smith of King & Spalding;
(b) Mr Kevin D. Mohr of King & Spalding;
(c) Ms Amy Roebuck Frey of King & Spalding;
(d) Ms Isabel San Martin of King & Spalding;
(e) Ms Ines Vazquez Garcia of Gómez-Acebo & Pombo;
(f) Ms Teresa Gutiérrez Chacón of Gómez-Acebo & Pombo;
(g) Ms Inés Puig-Samper of Gómez-Acebo & Pombo;
(h) Ms Cristina Matia of Gómez-Acebo & Pombo;
(i) Mr Ignacio Soria Petit of Gómez-Acebo & Pombo;
(j) Ms Violeta Valicenti of King & Spalding;
(k) Mr Eduard Fidler formerly of BlackRock Investment Management (UK) Limited and First Reserve International Limited;
(l) Mr José Alberto Ceña Lázaro of the AEE;
(m) Dr José Antonio Garcia of Brattle Group;
(n) Mr Carlos Lapuerta of Brattle Group;
(o) Mr Richard Caldwell of Brattle Group;
(p) Ms Annika Opitz of Brattle Group;
(q) Mr Andrés Child of Brattle Group; and
(r) Mr Christian Synetos of BlackRock.
(a) Mr José Manuel Gutiérrez Delgado of the Attorney General's Office;
(b) Mr Pablo Elena Abad of the Attorney General's Office;
(c) Mr Alberto Torró Molés of the Attorney General's Office;
(d) Mr Roberto Fernández Castilla of the Attorney General's Office;
(e) Ms Gabriela Cerdeiras Megías of the Attorney General's Office;
(f) Ms María de Lourdes Martínez de Victoria Gómez of the Attorney General's Office;
(g) Ms Elena Oñoro Sainz of the Attorney General's Office;
(h) Mr Juan Antonio Quesada Navarro of the Attorney General's Office;
(i) Ms Gloria de la Guardia Limeres of the Attorney General's Office;
(j) Ms Carmen Roa Tortosa of the Attorney General's Office;
(k) Mr Juan Ramón Ayuso Ortiz of the Insitute for the Diversification and Saving of Energy (IDAE);
(l) Dr Daniel Flores of Quadrant Economics;
(m) Mr Jordan Heim of Quadrant Economics; and
(n) Mr Andrés León of Quadrant Economics.
(a) 29 September 2020: Mr Eduard Fidler for FREIF; Mr Juan Ramón Ayuso for Spain;
(b) 30 September 2020: Mr José Alberto Ceña Lázaro for FREIF; Messrs José Antonio Garcia and Carlos Lapuerta for FREIF;
(c) 1 October 2020: Messrs José Antonio Garcia, Carlos Lapuerta and Richard Caldwell for FREIF; and
(d) 2 October 2020: Messrs Daniel Flores and Jordan Heim for Spain.
(a) that because Respondent has failed to produce the data and calculations underlying RD 436/2004, RD 661/2007, as well as Law 54/1997, such data would demonstrate that the regulator never established a limit on returns at 7%; and
(b) that had those documents been produced, they would support Claimant's position that Spain both knew and intended that returns could go well above 7% for wind facilities, as provided in the regulator's Renewable Energy Plans, the CNE's reports, and understood by the entire sector at the time.
(a) The party seeking the inference must produce all available evidence corroborating the inference sought.
(b) The evidence is accessible to the inference opponent.
(c) The inference sought is reasonable; that is, it must be consistent with facts and other evidence.
(d) Prima facie evidence of the requesting party has to be reasonably consistent with the inference sought.
(e) The non-producing party must be aware of its obligation to produce rebuttal evidence.
To clarify things further, at that time the plan that was in force was the revision of the renewable energy plan for 2005-2010, wherein you saw a certain number of standard facilities and you saw some proposals for tariffs and premiums on the basis of the 436 remunerative system. Therefore, since the 661 is going to have a different approach to remuneration, then you have to make sure that the calculations that we had included for the standard installations in the renewable energy plan would turn out to be consistent with the 661 new remunerative scheme, so as to make sure that there would be a reasonable return, more or less around 7 per cent, as mentioned in the renewable energy plan.
[A]s I said before, I was involved in the calculations that lay behind Royal Decree 661, in order to be consistent with the standard facilities of the current Renewable Energy Plan that in this case was the Renewable Energy Plan of 2005-2010.
(a) FREIF's Statement of Claim dated 9 April 2018;
(b) Spain's Counter-Memorial on the Merits and Memorial on Jurisdiction dated 25 September 2018;
(c) FREIF's Reply Memorial on the Merits and Counter-Memorial on Jurisdiction dated 20 March 2019;
(d) Spain's Rejoinder on the Merits and Reply on Jurisdiction dated 12 July 2019;
(e) FREIF's Rejoinder on Jurisdiction dated 2 August 2019;
(f) Spain's Supplementation of the Jurisdictional Objections dated 18 November 2019;
(g) FREIF's Brief Comments on Sale of Assets dated 25 November 2019;
(h) Spain's Brief Comments on Sale of Assets dated 25 November 2019;
(i) FREIF's Counter-Memorial on the Supplementary Jurisdictional Objection dated 20 December 2020;
(j) Spain's Reply on its Supplementary Jurisdictional Objection dated 8 January 2020;
(k) FREIF's Rejoinder on the Supplementary Jurisdictional Objection dated 22 January 2020;
(l) FREIF's Post Hearing Brief dated 28 December 2020;
(m) Spain's Post Hearing Brief dated 28 December 2020;
(n) FREIF's Costs Submission dated 4 February 2021;
(o) Spain's Costs Submission dated 4 February 2021;
(p) FREIF's Submission on Interest on Costs dated 17 February 2021;270 and
(q) Spain's Submission on Interest on Costs dated 17 February 2021.
(a) Witness Statement of Mr Mark Florian dated 5 April 2018;
(b) Witness Statement of Mr Eduard Fidler dated 5 April 2018;
(c) Expert Witness Statement of Mr José Alberto Ceña Lázaro dated 9 April 2018;
(d) Second Witness Statement of Mr Eduard Fidler dated 7 March 2019; and
(e) Second Expert Witness Statement of Mr José Alberto Ceña Lázaro dated 8 March 2019.
The expert reports provided by FREIF in this Arbitration were:
(a) Regulatory Expert Report of The Brattle Group dated 6 April 2018 (First Brattle Regulatory Report);
(b) Financial Expert Report of The Brattle Group dated 6 April 2018 (First Brattle Quantum Report) ;
(c) Rebuttal Regulatory Expert Report of The Brattle Group dated 8 March 2019 (Second Brattle Regulatory Report) ;
(d) Rebuttal Financial Expert Report of The Brattle Group dated 8 March 2019 (Second Brattle Quantum Report); and
(e) Asset Sale Memorandum of The Brattle Group dated 25 November 2019.
(a) Report of ECON ONE Research, INC., prepared by Dr. Daniel Flores and Mr. Jordan Heim dated 25 September 2018 (First Quadrant Report);
(b) Report of Quadrant Economics LLC., prepared by Dr. Daniel Flores and Mr. Jordan Heim (Second Quadrant Report); and
(c) Update to the Second Expert Report of Dr Daniel Flores and Mr Jordan Heim of Quadrant Economics dated 25 November 2019 (Update to the Second Quadrant Report).
(a) a declaration that the Tribunal has jurisdiction under the ECT for all of FREIF's claims, thereby rejecting Spain's jurisdictional objections in full;
(b) a declaration that Spain has violated Part III of the ECT and international law with respect to FREIF's investments;
(c) compensation to FREIF for all damages it has suffered as set forth and as may be further developed and quantified during the course of this proceeding;
(d) all costs of this proceeding, including (but not limited to) FREIF's attorneys' fees and expenses, the fees and expenses of FREIF's experts, and the fees and expenses of the Tribunal and SCC;
(e) 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
(f) any other relief the Tribunal deems just and proper.
(a) a declaration that there is no jurisdiction to hear the complaints of FREIF or, as appropriate, the inadmissibility thereof;
(b) in the alternative, in the event that the Tribunal decides that it does have jurisdiction to hear the present dispute, the dismissal of all of FREIF's claims on the merits, due to the fact that Spain has not in any way failed to comply with the ECT;
(c) In the alternative, the dismissal of all claims for compensation of FREIF as it is not entitled to compensation; and
(d) an order that FREIF pays all costs and expenses arising from this arbitration, including administrative expenses and SCC fees, as well as the fees of the legal representation of Spain, its experts and advisers, and any other costs or expenses that may have incurred, all of which include a reasonable interest rate from the date these costs are incurred until the date of its actual payment.
(a) first, set out the legal and factual background to the dispute by summarising the history and factual context of the dispute, extracting relevant provisions of the ECT and providing an overview of relevant case law from other renewable energy arbitrations brought under the ECT against Spain (Parts K, L and M);
(b) second, summarise the pleadings and submissions of both Parties on each of Spain's three jurisdictional objections and set out the Tribunal's reasoning and determination of the issues (Parts N, O and P);
(c) fourth, summarise the pleadings and submissions of both Parties on the merits of case regarding breaches of the ECT and international law, and set out the Tribunal's reasoning and determination of the issues (Part Q);
(d) fifth, summarise the pleadings and submissions of both Parties on the issue of quantum and set out the Tribunal's reasoning and determination of the issues (Part R);
(e) sixth, summarise the Parties' costs submissions and provide the Tribunal's determination as to costs (Part S); and
(f) finally, make dispositive orders (Part T).
"[T]he industry agreed to accept (1) temporary decreases in the levels of compensation available to some facilities… and (2) a limitation on operating hours in years with unusually high production. In exchange, Spain committed to maintain wind and thermosolar facilities' option of electing to receive a premium on top of market prices throughout the operating lives, of all registered facilities, and not to apply any other changes to the remuneration for existing wind plants in the future. Spain implemented the 2010 Agreement through [RD 1614/2010]. True to Spain's word, Article 5 of RD 1614/2010 reiterated its promise that all future adjustments in remuneration would not be applied retroactively to already built and operational facilities."
(a) First, FREIF denies that the Original Regulatory Regime was subject to the dual principles of "economic sustainability" and "reasonable return"; and
(b) Secondly, FREIF disputes Spain's argument that RD 1614/2010 did not embody an Agreement struck between the energy sector and the Government.
(a) The original regulatory regime;
(b) The development of the law;
(c) The tariff deficit;
(d) The status of RD 1614/2010;
(e) FREIF's investment; and
(f) The new regulatory regime.
To determine the premiums, voltage levels delivered to the grid shall be considered, as well as the actual contribution to environmental improvement, primary energy savings and energy efficiency, and the investment costs incurred to obtain reasonable rates of return with regard to the cost of money in the capital markets.
Financial self-sufficiency, as reflected in Act 40/1994, of 30 December, on planning of the National Electricity System (hereinafter, "Act 40/1994") was expressly reaffirmed in 2011 by an Act that FREIF omitted to mention to the Arbitral Tribunal. Act 1/2011, on the Sustainable Economy of 2011, explicitly established the need for any planning to be done on the basis of a sustainable system.296
the pairing market price [sic] plus subsidy in Law 54/1997 has a clear and precise objective: to give a reasonable return on investment, according to the cost of money in the capital market.298
To determine the premiums, voltage levels delivered to the grid shall be considered, as well as the actual contribution to environmental improvement, primary energy savings and energy efficiency, and the investment costs incurred to obtain reasonable rates of return with regard to the cost of money in the capital markets.
(a) the tariff rate scale was revised, and set as a percentage of AET. The AET was an index published annually by the Ministry of the Economy, which set different tariff rates for facilities of different sizes. The tariff rate was to remain consistent for a period of 15 years, at which time it would reduce.302
(b) Crucially, Article 40 authorised the revision of the "tariffs, premiums, incentives and supplements" only in respect of plants built after the entry into force of that law.303
The subsidies established in RD 436/2004 are not intended to grant an indeterminate return. These subsidies respond to a specific methodology aimed at granting a standard facility a reasonable return over a given period of time.
Article 40. Revision of tariffs, premiums, incentives and supplements for new facilities
1. In 2006, in view of the results of monitoring reports on the degree of compliance with the Development plan for renewable energy, the tariffs, premiums, incentives, and supplements defined in this RD will be reviewed, attending the costs associated with each of these technologies, the degree of participation of the special regime in covering demand and its impact on the system's technical and economic management. Every four years starting from 2006, a new review shall be performed…
3. The tariffs, premiums, incentives and supplements resulting from any of the revisions referred to in this section shall apply only to the facilities that become operational after the date of entry into force referred to in the preceding paragraph, without retroactivity to previous tariffs and premiums.
Incentives were no longer linked to a formula (the AET) that would vary from year to year in the Government's discretion, but were guaranteed against future revisions to endure throughout the operating lives of the facilities.
(a) it guaranteed that the market premium would remain in effect for twenty years, and that the fixed tariff would remain in effect for the life of a facility.313
(b) it maintained that the remuneration rates could not be adjusted in respect of existing plants, per Article 44.3.
The combination of (i) a perfectly known price… and (ii) a clear and easy method of automatic adjustment (in line with the indexed rate of inflation), together with (iii) the guarantee of continued support throughout the entire life of each facility and (iv) the guarantee of no retroactive effect of future revisions, offered investors an attractive degree of security.
During the year 2010, on the sight of the results of the monitoring reports on the degree of fulfilment of the Renewable Energy Plan (PER) 2005-2010, and of the Energy Efficiency and Savings Strategy in Spain (E4), together with such new energy targets as may be included in the subsequent renewable Energies Plan 2011-2020, there shall be a review of the tariffs, premiums, supplements and lower and upper limits defined in this Royal Decree.
As regards the effects of these specific revisions and not others, article 40 of RD 436/2004 stipulated that: "The tariffs, primes, incentives and supplements resulting from any of the revisions referred to in this section shall apply only to the facilities that become operational after the date of entry into force referred to in the preceding paragraph, without retroactivity to previous tariffs and primes".
The same caution remains in RD 661/2007, where it states that the effects of revisions that take place as a result of having achieved the planned objectives, and only these revisions, cannot affect existing facilities: "The reviews referred to in this section of the regulated tariff and the upper and lower limits will not affect facilities whose commissioning certificate was awarded by 1 January of the second year following the year in which the review was carried out."
In other words, article 44 of RD 661/2007, just like article 40 of RD 436/2004, limits the effects of the revisions of the specific revisions provided for in these articles, the ordinary revisions linked to planning objectives, and not to others.
These changes are justified and admissible in an attempt to correct situations of windfall profits and to guarantee the economic sustainability of the SES. Starting in 2006 and 2007, no investor could have had the expectation that RD 661/2007 or any of its articles or similar articles contained in a regulation could prevent the implementation of regulatory measures that would affect existing facilities by reducing their remuneration when such measures were justified by the need to guarantee the economic sustainability of the SES and/or to correct situations of excess remuneration.
the tariff deficit emerged for the simple reason that Spain failed to set consumer charges at a level sufficient to cover the costs of the electricity system.330
merely established an additional administrative pre-requisite for new facilities to be eligible for Special Regime incentives; it did not make any changes to the rights of facilities already part of the Special Regime.332
that were necessary to achieve the above-mentioned objective [to reduce the tariff deficit]. In other words, until this objective was attained, all costs and revenues of the SES would be subject to its achievement.
In exchange for these revisions to the regulatory framework, Article 5.3 of RD 1614/2010 expressly excluded the possibility of any future revisions to the incentive regime for existing facilities.338
an agreement was finally reached on July 2, 2010. On that same day, the Ministry issued a press release announcing that it had "entered into an agreement with the wind and CSP sectors to review their remuneration framework".
The AEE received a first draft of the Royal Decree from the Ministry on July 14, 2010, and submitted its comments and edits to each of the versions it received from the Ministry. Mr Jose Ceña Lazaro directly participated in this process, preparing the AEE's comments and edits to each of the drafts to make sure the decree accurately reflected the content of the Agreement.
FREIF's arguments aimed at turning RD 1614/2010 into a kind of contract resulting from the negotiations are simply nonsense. There are many examples that can be given regarding dialogues with associations carried out by the Government of Spain for the purposes of developing a regulation.
meant that the government had already made all the adjustments that would affect windfarms and promised that no future revisions would apply to existing plants in a law that had been agreed with the wind industry.
(a) an "arbitrary" reduction in the promised tariffs, effected by the introduction of a 7% tax on all renewable energy producers.
(b) modification of the CPI adjustment employing an 'adjusted CPI' formula; and
(c) regulation to eliminate the option to accept a premium on the market sale price of electricity production (an option which had been in force since 1998).
This remuneration scheme does not exceed the minimum level necessary to cover the costs that allow for the facilities to compete equally with the rest of technologies in the market and that would lead to a reasonable rate of return by reference to the standard facility applicable in each case.
Above the 'operating threshold', but below the 'minimum operating hours' level, plants receive a percentage of the maximum investment incentive (in proportion to the hours of operation compared to the minimum). Above the minimum operation hours level, plants receive no additional incentives, and only receive the wholesale price for all additional electricity. Thus, the "minimum operation hours" acts as a cap on the incentives that a wind plant can receive under the New Regulatory Regime.
The New Regulatory regime is astonishingly complex and uncertain, in stark contradiction to the simplicity and transparency that investors demanded, and that RD 661/2007 provided, in order to attract widespread investment in Spain's renewable energy sector. More importantly, the New Regulatory Regime is a "sea change" in the regulatory framework that fundamentally altered the risk and reward framework under which investors committed their valuable capital.
none of the six projects is now able to achieve the returns it would have generated under the regulatory framework that Spain had originally guaranteed and that induced FREIF's investment.367
|1980||Spain adopted Law 82/1980, which had the goal of promoting renewable energy and increasing energy efficiency as part of a strategy to reduce dependence on imported hydrocarbons.|
|1981||Spain adopted Royal Decree (RD) 1217/1981 to promote "mini" hydro facilities.|
|1982||Spain adopts RD 1544/1982, expanding the incentive regime to hydro facilities over 5 MW.|
|1986||Spain enacts the 1986 Renewable Energy Plan.|
|1989||Spain enacts the 1989 Renewable Energy Plan.|
|1991||Spain enacts a National Energy Plan for the next decade, which specified Spain's goal of increasing the share of total primary energy consumption from non-hydro renewable sources.|
|1994||Spain enacts RD 2366/1994, which created the Special Regime for electricity generators from renewable energy sources, cogeneration, and waste facilities under 100 MW.|
|1994||The EU issues the Declaration of Madrid, which called on the EU to establish a goal that renewable energy would satisfy 15% of the EU's energy requirements by 2010.|
|1994.12.30||Spain enacts Law 40/1994, of 30 December, on planning of the National Electricity System.|
|1997||EC publishes a White Paper that calls for the EU to satisfy 12% of its total energy requirements from renewable resources by 2010.|
|1997.11.27||Spain enacts Law 54/1997.|
|1998.04.28||EU agrees to binding emission-reduction goals in the Kyoto Protocol, wherein the EU committed to an emissions reduction of 8% below 1990 levels in the period from 2008-2012.|
|1998.06||EU meets in Luxembourg to establish national emissions targets for Member States to meet targets under the Kyoto Protocol. Spain's emissions increase was capped at 15% above its 1990 output.|
|1998.12.23||Spain enacts Royal Decree 2818/1998.|
|1999.12||The Development Plan of Renewable Energies 2000-2010 is delivered.|
|2001.02.03||The European Commission publishes the "Community Guidelines on State Aid for environmental protection" in the Official Journal of the European Union.|
|2001.09||EU adopts Directive 2001/77 EC on the Promotion of Electricity Produced from Renewable Energy Sources in the Internal Electricity Market, establishing a target to satisfy 12% of total EU energy consumption and 22.1% of EU electricity production from renewable resources by 2010.|
|2004.03.12||Spain enacts Royal Decree 436/2004.|
|2005.08||The Renewable Energy Plan in Spain 2005-2010 is delivered.|
|2005.12.15||The Spanish Supreme Court renders a Judgment.|
|2006.03.09||One of the projects that Claimant would later acquire, La Fuensanta, receives its RAIPRE registration confirming its right to Special Regime tariffs.|
|2006.06.23||Spain enacts Royal Decree-Law ("RDL") 7/2006.|
|2006.10.25||The Spanish Supreme Court renders a Judgment.|
|2007.05.25||Spain enacts RD 661/2007.|
|2007.05.25||Spain issues a press release on RD 661/2007. Spain's Council of Ministers issues a similar notice on RD 661/2007.|
|2007.07||Pöyry issues a report called "Current and future state of wind energy in Spain and Portugal".|
|2007.10.09||The Spanish Supreme Court issues a Judgment.|
|2004-2009||Spain gives a number of presentations to the investment community on the RD 436/2004 and RD 661/2007 incentive regimes.|
|2008.03.07||Two other of the wind projects that Claimant would later acquire, Casa del Aire I and Casa del Aire II, receive their RAIPRE registrations.|
|2008.05.09||Three other of the wind projects that Claimant would later acquire, La Muñeca, Alconada, and Cuesta Mañera, receive their RAIPRE registrations.|
|2008.09.26||Spain enacts RD 1578/2008.|
|2009.04.30||Spain enacts RD-Law 6/2009.|
|2009.05.20||The Draft of a future Renewable Energy Law is presented jointly by APPA and Greenpeace, who also issued a press release.|
|2009.12.03 and 2009.12.09||The Spanish Supreme Court renders three Judgments.|
|"Late" 2009||First Reserve, Claimant's then-parent company, is introduced to Renovalia, which will become its JV partner for the acquisition of the wind projects at issue in this arbitration.|
|2010.04.22||Renovalia, Claimant's JV partner, issues an offer for the subscription and admission to trading of shares.|
|June 2010||Reports and/or summaries of conversations between the Spanish Ministry and the wind sector (and/or a related agreement, from Claimant's perspective, which Respondent disputes) are issued.|
|2010.06.30||Spain adopted the National Renewable Energy Action Plan for 2011-2020 (PANER).|
|2010.07.02||The Ministry of Industry issues a press release.|
|2010.07.29||The AEE submits allegations to the CNE during the Spanish National Energy Commission public consultation process on the Proposed RD 1565/2010.|
|2010.11.19||Spain enacts RD 1565/2010.|
|2010.12.07||Spain enacts RD 1614/2010.|
|2010.12.23||Spain enacts RD-Law 14/2010 which established urgent measures for the correction of the tariff deficit in the electricity sector.|
|2011.01.26||The Minister of Industry (Mr. Sebatian) gives a speech to the Congress of Deputies during the session held to approve RD-Act 14/2010.|
|2011.01-06||Linklaters provides ongoing advice to First Reserve regarding Claimant's potential investment in Spain.|
|2011.03.04||Spain enacts Law 2/2011, of 4 March, on Sustainable Economy.|
|2011.03||Pöyry issues a report entitled "Current state and future trends of solar power in Spain".|
|2011.05.18||First Reserve addressed an indicative offer to Renovalia to establish a joint venture to own a portfolio of wind assets in Spain and to possibly acquire further assets under development once they were fully developed and ready to build.|
|2011.09.22||First Reserve completed the "Renovalia JV Infrastructure Investment Committee Final Memo," recommending that Claimant proceed with the Renovalia JV.|
|2011.10.14||Claimant and Renovalia enter into a share sale and purchase agreement (2011 SPA) to acquire the wind projects.|
|2011.12.01||Shareholders agreement between Claimant and Renovalia comes into effect.|
|2011.12.19||The candidate for Prime Minister makes its inaugural address at Congress.|
|2011.12.28||The CNE issues a press release.|
|2012.01.27||Spain enacts Royal Decree-Law 1/2012, of 27 January, proceeding to the suspension of remuneration pre-allocation procedures and the elimination of the economic incentives for new electric energy production plants using cogeneration, renewable energy sources and waste.|
|2012.01.27||The Ministry of Industry, Energy and Tourism issues a press release.|
|2012.03.07||The CNE issues Report 2/2012 On the Spanish Energy Sector on 7 March 2012, the first part of which is dedicated to the Measures to Ensure the Economic and Financial Sustainability of the Electricity System.|
|2012.04.25||Claimant acquired an additional 12.5% indirect interest in ENERDEURO|
|2012.04.27||The government approves the National Reform Program 2012.|
|2012.07.06||The European Union Council makes a statement.|
|2012.07.20||The Kingdom of Spain subscribed with the EU the Memorandum of Understanding on Financial-Sector Policy Conditionality.|
|2012.11.12||Spanish Supreme Court issues a judgment.|
|2012.12.27||Spain enacts Law 15/2012.|
|2013.02.01||Spain enacts RDL 2/2013.|
|2013.07.13||Spain enacts RDL 9/2013|
|2013.12.26||Spain enacts Law 24/2013.|
|June 2014||Spain enacts RD 413/2014 and Ministerial Order IET/1045/2014.|
|2016.04.20||Spanish Supreme Court issues a judgement.|
|2017.11.13||The European Commission ("EC") issues its Decision in State Aid procedure SA.40348.|
|2019.05.01||Claimant sells its interests in the wind plants at issue in this arbitration, while retaining its rights to pursue this arbitration.|
|2019.11.22||Spain enacts RDL 17/2019.|
Part I, Article 1 sets out definitions of key terms which are relevant to the intra-EU objection and the "electa una via" provision. These definitions include:
(2) "Contracting Party" means a state or Regional Economic Integration Organization which has consented to be bound by this Treaty and for which the Treaty is in force.
(3) "Regional Economic Integration Organization" means an organization constituted by states to which they have transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect of those matters.
(7) "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 organization organized in accordance with the law applicable in that Contracting Party;
(b) with respect to a "third state", a natural person, company or other organization which fulfils, mutatis mutandis, the conditions specified in subparagraph (a) for a Contracting Party.
Part III, Article 16 on "Relation to Other Agreements", which is relevant to the intra-EU objection, provides:
Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty,
(1) nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and
(2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favourable to the Investor or Investment.
Part V, Article 25, entitled "Economic Integration Agreements" provides:
(1) The provisions of this Treaty shall not be so construed as to oblige a Contracting Party which is party to an Economic Integration Agreement (hereinafter referred to as "EIA") to extend, by means of most favoured nation treatment, to another Contracting Party which is not a party to that EIA, any preferential treatment applicable between the parties to that EIA as a result of their being parties thereto.
(2) For the purposes of paragraph (1), "EIA" means an agreement substantially liberalising, inter alia, trade and investment, by providing for the absence or elimination of substantially all discrimination between or among parties thereto through the elimination of existing discriminatory measures and/or the prohibition of new or more discriminatory measures, either at the entry into force of that agreement or on the basis of a reasonable time frame.
(3) This Article shall not affect the application of the WTO Agreement according to Article 29.
Part VII, Article 36(7) provides for the voting procedure of a Regional Economic Integration Organization, which is referred to during submissions on the intra-EU objection:
A Regional Economic Integration Organization shall, when voting, have a number of votes equal to the number of its Member States which are Contracting Parties to this Treaty; provided that such an Organization shall not exercise its right to vote if its Member States exercise theirs, and vice versa.
(1) Except as otherwise provided in this Article, nothing in this Treaty shall create rights or impose obligations with respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of the Treaty, this Article shall prevail to the extent of the inconsistency.
(7) For the purposes of this Article:
(a) The term "Taxation Measure" includes:
(i) any provision relating to taxes of the domestic law of the Contracting Party or of a political subdivision thereof or a local authority therein;
(ii) any provision relating to taxes of any convention for the avoidance of double taxation or of any other international agreement or arrangement by which the Contracting Party is bound.
Part III, Article 10(1) on the "Promotion, Protection and Treatment of Investments" is the key provision which contains obligations that FREIF submit have been breached by Spain. It provides:
Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party. (footnotes omitted)
The party listed in each of the final three columns is the party that succeeded on the issue.
|Date||Exhibit||Award/Decision||Tribunal||Intra-EU||Taxation||Electa Una Via|
|2014.10.13||CL-203||The PV Investors v. Kingdom of Spain, PCA Case No. 2012-14, Preliminary Award on Jurisdiction||Prof. Gabrielle Kaufmann-Kohler (President); The Hon. Charles N. Brower; Judge Bernardo Sepulveda-Amor||Claimant||Issue not raised||Claimant|
|2016.01.21||RL- 0025||Charanne B.V. & Constr. Invs. S.à.r.l. v. Kingdom of Spain, SCC Arb. No. 062/2012, Award||Alexis Mourre (President); Guido Santiago Tawil; Claus von Wobeser||Claimant||Issue not raised||Claimant|
|2016.06.06 2018.11.30||CL-95 CL-164||RREEF Infra. (G.P.) Ltd. & RREEF Pan European Infra. Two Lux S.à.r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction RREEF Infra. (G.P.) Ltd. & RREEF Pan-European Infra. Two Lux S.à.r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and on the Principles of Quantum||Prof. Alain Pellet (President); Prof. Pedro Nikken; Prof. Robert Volterra||Claimant||Respondent374||Issue not raised|
|2016.07.12||RL- 0005||Isolux Infra. Netherlands B.V. v. Kingdom of Spain, SCC 2013/153, Award||Mr Yves Derains (Chairman); Prof. Guido Santiago Tawil; Mr Claus Von Wobeser||Claimant||Claimant did not contest that TPVEE was a taxation measure.||Issue not raised|
|2017.05.04||CL-76||Eiser Infrastructure Ltd & Energia Solar Luxembourg S.A.R.I. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Award NB: Annulled due to conflict of interest||Prof. John R Crook (President); Dr Stanimir A. Alexandrov; Prof. Campbell McLachlan QC||Claimant||Claimant did not contest that TPVEE was a taxation measure.||Issue not raised|
|2018.02.15||CL-19||Novenergia II – Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Kingdom of Spain, SCC Arbitration (2015/063), Final Arbitral Award||Mr Johan Sidklev (Chairperson); Prof. Antonio Crivellaro; Judge Juez Bernardo Sepulveda-Amor||Claimant||Respondent||Issue not raised|
|2018.05.16||CL-103||Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award||Mr John Beechey CBE (President); Mr Gary Born; Prof. Brigitte Stern||Claimant||Respondent||Issue not raised|
|2018.06.15||CL-104||Antin Infra. Servs. Lux. S.à.r.l. & Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID Case No. ARB/13/31, Award||Dr Eduardo Zuleta (President); Mr J Christopher Thomas QC; Prof. Francisco Orrego Vicuna||Claimant||Respondent||Issue not raised|
|2018.11.14||CL-106||Foresight Luxembourg Solar 1 S.A.R.L, Foresight Luxembourg Solar 2 S.A.R.L., Greentech Energy Systems A/S et al. v. Kingdom of Spain, SCC Arbitration V (2015/150), Final Award||Dr Michael Moser (Chairperson); Prof. Dr Klaus Michael Sachs; Dr Raul Emilio Vinuesa||Claimant||Respondent||Issue not raised|
|2019.02.19||CL-171||Cube Infra. Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Decision on Jurisdiction, Liability and Partial Decision on Quantum||Professor Vaughan Lowe (President); The Hon. James Spigelman; Prof. Christian Tomuschat||Claimant||Respondent||Issue not raised|
|2019.02.25||CL-205||Landesbank Baden-Württemberg et al. v. Kingdom of Spain, ICSID Case No. ARB/15/45, Decision on the "Intra-EU" Jurisdictional Objection||Sir Christopher Greenwood QC (President); Mr Rodrigo Oreamuno; Dr Charles Poncet||Claimant||Issue not raised or not yet decided.||Issue not raised or not yet decided.|
|2019.03.12||CL-165||NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Kingdom of Spain, ICSID Case No. ARB/14/11, Decision on Jurisdiction, Liability and Quantum Principles
||Prof. Donald M McRae (President); The Hon. L. Yves Fortier; Prof. Laurence Boisson de Chazournes||Claimant||Respondent||Issue not raised|
|2019.05.31||CL-167||9REN Holding S.à.r.l. v. Kingdom of Spain, ICSID Case No. ARB/15/15, Award||The Hon. Ian Binnie QC (President); Mr David R Haigh QC; Mr VV Veeder QC||Claimant||Respondent||Issue not raised|
|2019.07.31||CL-185||SolEs Badajoz GMBH v. Kingdom of Spain, ICSID Case No. ARB/15/38, Award||Judge Joan E Donoghue (President); Prof. Giorgio Sacerdoti; Sir David AR Williams QC||Claimant||Respondent||Issue not raised|
|2019.08.02||CL-202||InfraRed Environmental Infrastructure GP Limited and others v. Kingdom of Spain, ICSID Case No. ARB/14/12, Award||Mr Stephen L. Drymer (President); Prof. William W Park; Prof. Pierre-Marie Dupuy||Claimant||Respondent||Issue not raised|
|2019.09.06||CL-200||OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain, ICSID Case No. ARB/15/36, Award||Prof. Dr Karl-Heinz Bockstiegel (President); Prof. Mmag. Dr August Reinisch; Prof. Philippe Sands QC||Claimant||Respondent||Issue not raised|
|2019.12.02||RL- 0147||Baywa R.E. Renewable Energy GMBH and Other v. Kingdom of Spain, ICSID Case No. ARB/15/16. Decision on Jurisdiction, Liability and Directions on Quantum and Dissent||Judge James R. Crawford (President); Dr Horacio A. Grigera Naón; Ms Loretta Malintoppi||Claimant||Respondent||Issue not raised|
|2019.12.02||RL- 0149||ARB/15/1. Award and Dissent||Prof. Jeswald W. Salacuse (President); Prof. Kaj Hobér; Prof. Zachary Douglas QC||Claimant||Respondent||Issue not raised|
|2019.12.30||RL- 0151||RWE Innogy GMBH and RWE Innogy Aersa S.A.U. v. Kingdom of Spain, ICSID Case No. ARB/14/34. Decision on Jurisdiction, Liability and Certain Issues of Quantum||Mr. Samuel Wordsworth QC, (President); Ms. Anna Joubin-Bret; Mr. Judd L. Kessler||Claimant||Respondent||Issue not raised|
|2020.01.21||RL- 0159||Watkins Holding S.à.r.l. et al. v. Kingdom of Spain, ICSID Case No. ARB/15/44, Award||Tan Sri Dato' Cecil W.M. Abraham (President); Dr. Michael C. Pryles AO; Prof. Dr. Hélène Ruiz Fabri||Claimant||Respondent||Issue not raised|
|2020.03.09||RL- 0155||Hydro Energy 1 S.À R.L. And Hydroxana Sweden Ab v. Kingdom of Spain ICSID Case No. ARB/15/42, Decision on Jurisdiction, Liability and Directions On Quantum||Lord Collins of Mapesbury (President); Prof. Rolf Knieper; Mr Peter Rees, QC||Claimant||Respondent||Issue not raised|
|2020.08.31||RL- 0162||Cavalum SGPS, S.A. v. The Kingdom of Spain, ICSID Case No. ARB/15/34, Decision on Jurisdiction, Liability and Directions on Quantum and Dissent||Lord Collins of Mapesbury (President); Mr. David R. Haigh QC; Sir Daniel Bethlehem QC||Claimant||Respondent||Issue not raised|
|2016.01.21||CL-96||Charanne B.V. & Constr. Invs. S.à.r.l. v. Kingdom of Spain, SCC Arb. No. 062/2012, Award||Alexis Mourre (President); Guido Santiago Tawil; Claus von Wobeser||Prof. Guido Santiago Tawil dissented on approach to 'legitimate expectations' regarding the standard of "fair and equitable treatment"||Spain not liable|
|2016.07.12||CL-97||Isolux Infra. Netherlands B.V. v. Kingdom of Spain, SCC 2013/153, Award||Mr Yves Derains (Chairman); Prof Guido Santiago Tawil; Mr Claus Von Wobeser||Prof. Guido Santiago Tawil dissented on approach to 'legitimate expectations' regarding the standard of "fair and equitable treatment"||Spain not liable|
|2017.05.04||CL-76||Eiser Infrastructure Ltd & Energia Solar Luxembourg S.A.R.I. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Award -Annulled due to conflict of interest||Prof. John R Crook (President); Dr Stanimir A. Alexandrov; Prof. Campbell McLachlan QC||N/A||Spain liable for failing to honour specific incentive guarantees|
|2018.02.15||CL-19||Novenergia II – Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Kingdom of Spain, SCC Arbitration (2015/063), Final Arbitral Award||Mr Johan Sidklev (Chairperson); Prof. Antonio Crivellaro; Judge Juez Bernardo Sepulveda-Amor||N/A||Spain liable for failing to honour specific incentive guarantees|
|2018.05.16||CL-103||Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award||Mr John Beechey CBE (President); Mr Gary Born; Prof. Brigitte Stern||N/A||Spain liable for failing to honour specific incentive guarantees|
|2018.06.15||CL-104||Antin Infra. Servs. Lux. S.à.r.l. & Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID Case No. ARB/13/31, Award||Dr Eduardo Zuleta (President); Mr J Christopher Thomas QC; Prof. Francisco Orrego Vicuna||N/A||Spain liable for failing to honour specific incentive guarantees|
|2018.11.14||CL-106||Foresight Luxembourg Solar 1 S.A.R.L, Foresight Luxembourg Solar 2 S.A.R.L., Greentech Energy Systems A/S et al. v. Kingdom of Spain, SCC Arbitration V (2015/150), Final Award||Dr Michael Moser (Chairperson); Prof. Dr Klaus Michael Sachs; Dr Raul Emilio Vinuesa||Dr Raul Emilio Vinuesa dissented on the applicable law to the merits of the dispute and claimant's due diligence, and thus the finding on Spain's liability.||Spain liable for failing to honour specific incentive guarantees|
|2018.11.30||CL-164||RREEF Infra. (G.P.) Ltd. & RREEF Pan-European Infra. Two Lux S.à.r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and on the Principles of Quantum||Prof. Alain Pellet (President); Professor Pedro Nikken; Prof. Robert Volterra||Prof Robert Volterra partially dissented on quantum. He considered that the scope of legitimate expectations is different and Spain is liable for more than a reasonable rate of return.||Spain liable for failing to ensure a reasonable rate of return|
|2019.02.19||CL-171||Cube Infra. Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Decision on Jurisdiction, Liability and Partial Decision on Quantum||Prof. Vaughan Lowe (President); The Hon. James Spigelman; Prof. Christian Tomuschat||Prof. Christian Tomuschat issued partial dissent on merits and quantum on the basis that claimants are not entitled to claim compensation for hydro activities.||Spain liable for failing to honour specific incentive guarantees|
|2019.07.15||Cube Infra. Fund SICAV et al. v. Kingdom of Spain, ICSID Case No. ARB/15/20, Award|
|2019.03.12||CL-165||NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Kingdom of Spain, ICSID Case No. ARB/14/11, Decision on Jurisdiction, Liability and Quantum Principles||Prof. Donald M McRae (President); The Hon. L. Yves Fortier; Prof. Laurence Boisson de Chazournes||N/A||Spain liable for failing to ensure a reasonable rate of return|
|2019.05.31||NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Kingdom of Spain, ICSID Case No. ARB/14/11, Award|
|2019.05.31||CL-167||9REN Holding S.à.r.l. v. Kingdom of Spain, ICSID Case No. ARB/15/15, Award||The Hon. Ian Binnie QC (President); Mr David R Haigh QC; Mr VV Veeder QC||One unspecified member dissented on quantum (i.e., appropriate valuation).||Spain liable for failing to honour specific incentive guarantees|
|2019.07.31||CL-185||SolEs Badajoz GMBH v. Kingdom of Spain, ICSID Case No. ARB/15/38, Award||Judge Joan E Donoghue (President); Prof. Giorgio Sacerdoti; Sir David AR Williams QC||N/A||Spain liable for failing to honour specific incentive guarantees|
|2019.08.02||CL-202||InfraRed Environmental Infrastructure GP Limited and others v. Kingdom of Spain, ICSID Case No. ARB/14/12, Award||Mr Stephen L. Drymer (President); Prof. William W Park; Prof. Pierre- Marie Dupuy||Prof. Pierre-Marie Dupuy dissented on quantum regarding regulatory risk and illiquidity discount.||Spain liable for failing to honour specific incentive guarantees|
|2019.09.06||CL-200||OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain, ICSID Case No. ARB/15/36, Award||Prof. Dr Karl-Heinz Bockstiegel (President); Prof. Mmag. Dr August Reinisch; Prof. Philippe Sands QC||Prof. Philippe Sands' dissent is not public.||Spain liable for failing to honour specific incentive guarantees|
|2019.12.02||RL- 0147||Baywa R.E. Renewable Energy GMBH and Other v. Kingdom of Spain, ICSID Case No. ARB/15/16. Decision on Jurisdiction, Liability and Directions on Quantum and Dissent||Judge James R. Crawford (President); Dr. Horacio A. Grigera Naón; Ms. Loretta Malintoppi||Dr Horacio A Grigera Naón partially dissented on FET claim and quantum. He considered that claimant is entitled to full compensation.||Spain liable for failing to ensure a reasonable rate of return|
|2019.12.02||RL- 0149||Stadtwerke München GMBH, Rweinnogy GMBH, and Others v. Kingdom of Spain, ICSID Case No. ARB/15/1. Award and Dissent||Prof. Jeswald W. Salacuse (President); Prof. Kaj Hobér; Prof. Zachary Douglas QC||Professor Kaj Hobér dissented on liability, finding Spain liable for failing to honour specific incentive guarantees.||Spain not liable|
|2019.12.30||RL- 0151||RWE Innogy GMBH and RWE Innogy Aersa S.A.U. v. Kingdom of Spain, ICSID Case No. ARB/14/34. Decision on Jurisdiction, Liability and Certain Issues of Quantum||Mr. Samuel Wordsworth QC, (President); Ms. Anna Joubin-Bret; Mr. Judd L. Kessler||N/A||Spain liable for failing to ensure a reasonable rate of return|
|2020.01.21||CL-201||Watkins Holding S.à.r.l. et al. v. Kingdom of Spain, ICSID Case No. ARB/15/44, Award||Tan Sri Dato' Cecil W.M. Abraham (President); Dr. Michael C. Pryles AO; Prof. Dr. Hélène Ruiz Fabri||Prof. Dr. Hélène Ruiz Fabri dissented on liability and quantum.||Spain liable for failing to honour specific incentive guarantees|
|2020.02.28||CL-204||The PV Investors v. Kingdom of Spain, PCA Case No. 2012-14, Award and Concurring and Dissenting Opinion of Charles N. Brower||Prof. Gabrielle Kaufmann-Kohler (President); The Hon. Charles N. Brower; Judge Bernardo Sepulveda-Amor||Charles N. Brower dissented on the tribunal's acceptance of the alternative claim over primary claim for damages.||Spain liable for failing to honour specific incentive guarantees|
|2020.03.09||RL- 0155||Hydro Energy 1 S.À R.L. And Hydroxana Sweden Ab v. Kingdom of Spain ICSID Case No. ARB/15/42, Decision on Jurisdiction, Liability And Directions on Quantum||Lord Collins of Mapesbury, (President); Prof. Rolf Knieper; Mr Peter Rees, QC||N/A||Spain liable for failing to honour specific incentive guarantees|
|2020.08.31||RL- 0162||Cavalum SGPS, S.A. v Kingdom of Spain, ICSID Case No. ARB/15/34, Decision on Jurisdiction, Liability and Directions on Quantum and Dissent||Lord Collins of Mapesbury, (President); Mr. David R. Haigh QC; Sir Daniel Bethlehem QC||Mr. David R. Haigh QC dissented on liability, finding Spain liable for failing to honour specific incentive guarantees.||Spain liable for failing to ensure a reasonable rate of return|
Spain's first jurisdictional objection concerns the application of the ECT to intra-EU disputes. The issues raised under this objection can be understood to fall within three broad categories:
(a) whether FREIF is an investor of "another" Contracting Party when Spain and the United Kingdom are both members of the EU;
(b) whether EU law should apply, in the present case, in priority to the ECT; and
(c) whether the effect of the decision of the European Court of Justice (ECJ) in Slovakia v. Achmea (' Achmea ') is to deprive the Tribunal of jurisdiction in this intra-EU dispute.
Neither the Kingdom of Spain nor the United Kingdom could be bound under Part III [of the ECT] because their inclusion in the European Union entailed their acceptance of the primacy of EU law and the concession of their competences thereto in this area of intra-EU investment protection.
[an] organisation constituted by states to which they have transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect of those matters.
FREIF explains that the ECT draws careful distinctions between Contracting Parties that are individual States and those Contracting Parties that are also ORIEs (like the EU) so that all Contracting Parties have equal representation.388 For example, Article 36(7) carefully maintains a State's voting rights in circumstances when it is also part of an ORIE. FREIF concludes that:389
These provisions confirm the desire of the ECT Contracting Parties to preserve the autonomy of EU Member States to exercise their individual rights as ECT Contracting Parties and not to relegate the views of those EU Member States to a position subordinate to that of the EU. In other words, all Contracting Parties to the ECT are represented equally, regardless of whether they may belong to other organizations or international agreements.
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.
Spain suggests that EU law is a matter which must be considered when interpreting the dispute resolution provision in Article 26 as it is "international law". The effect of using EU law to interpret Article 26 is to expressly exclude the application of the dispute resolution mechanisms in Part III ECT in the case of intra-EU disputes. It is submitted that this conclusion is intended, "since the ECT, promoted and signed by the EU, safeguards EU law and its autonomy."390 In its Post Hearing Brief, Spain emphasises that EU law is the foundation of the Spanish support scheme for renewable energy that is the subject of the present case and that by investing in an EU Member State, FREIF was very aware of the implications this has in terms of application of EU law and regulations.391 Spain therefore submits that EU law creates a disconnection from international treaties for intra-EU relations, and therefore, the Tribunal lacks jurisdiction.392
In Spain's submission, EU investor protections are more favourable and therefore take precedence. Spain observes that EU members are afforded special protections under the various extant Treaties. An example of one such protection is that in Article 54 of the TFEU, which prohibits any kind of legal standard which dissuades an investor of the EU from establishing itself in another Member State.393 Other protections include: "remedies to actions that are contrary to the legitimate expectations of investors, disproportionate and/or that amount to an expropriation of their investment".394
Accepting that EU Member States should consent to intra-EU arbitration under Article 26 of the ECT would generate a conflict between the ECT and the principles of autonomy, primary and mutual trust of EU Law that must be resolved in favour of the latter pursuant to EU Law.
Its right under the ECT to submit its dispute to a neutral arbitration forum is more favourable than a rule that would require it to resort to the domestic courts of Spain before continuing through the EU legal system. This right to ECT arbitration is absent from the EU legal framework, which is only one way the EU system is demonstrably less favourable than the ECT.
Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States…, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.
(a) It is essential that, in order to protect integrity of the judicial system established under the various EU treaties, measures be taken to "ensure consistency and uniformity in the interpretation of EU legislation".
(b) Member States are therefore obligated under Article 19 TFEU to ensure the "full application" of EU Law.
(c) As arbitral tribunals are not fora forming part of the EU legal system (subject to no appellate jurisdiction nor oversight from the ECJ) they fall outside the purview of Article 19 TEU and Article 344 TFEU, which govern the interpretation and application of EU legislation.
(d) As investor-state arbitration does not guarantee that EU law is fully enforced, it is therefore incompatible with Articles 267 and 344 of the TFEU, which guarantee the "essential values of the European Union such as the autonomy and primacy of its legal order, distribution of powers, mutual trust between Member States (article 2 TEU) and the duty of sincere cooperation (article 4 TEU), and it removes from the EU judicial system disputes concerning Treaties of the EU."417
(a) First, Spain submits that to decide the dispute, the Tribunal is called upon to interpret/apply EU law -- in this case, the 'central institution' of State Aid (among other matters of EU law).
(b) Secondly, the ECJ is not empowered to "exercise its function of guaranteeing the full application of EU law in all Member States" as required by Article 267 TFEU.
(c) Finally, any award rendered in this arbitration is not appealable and thus is not subject to review by a Member State.419
all the prerequisites established by the Achmea judgment are met in order to establish the incompatibility of the ECT's Article 26(4) Clause (interpreted by FREIF) and EU Law, which is International Law, that this Court must apply with primacy to resolve the present dispute (Article 26(6) of the ECT). Both Spain and United Kingdom [sic] have been bound internationally, by virtue of the TFEU's Articles 267 and 344 to give primacy to EU Law and not to submit disputes concerning the interpretation and application of that right to bodies other than its own judicial system.
It is not the proper role of Article 31(3)(c) [of the VCLT] to rewrite the treaty being interpreted, or to substitute a plain reading of a treaty with other rules of international law, external to the treaty being interpreted, which would contradict the ordinary meaning of its terms.
It is unnecessary to recall all the authorities discussed by FREIF in its submissions. The thread linking each is captured however in the following extract from the decision in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain (Masdar):427
The Achmea Judgment is of limited application—first, and specifically, to the [Netherlands-Slovakia BIT] and, second, in a more general perspective, to any "provision in an international agreement concluded between Member States, such as Article 8 of the [Netherlands-Slovakia BIT]." The ECT is not such a treaty. Thus, the Achmea Judgment does not take into consideration, and thus it cannot be applied to, multilateral treaties, such as the ECT, to which the EU itself is a party.
It is true that, according to settled case-law of the Court, an international agreement providing for the establishment of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not in principle incompatible with EU law. The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected
In the present case, however, apart from the fact that the disputes falling within the jurisdiction of the arbitral tribunal referred to in Article 8 of the BIT may relate to the interpretation both of that agreement and of EU law, the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by the Member States. (emphasis added)
Similarly, the definition of "Area" in Article 1(10) with respect to an ORIE does not detract from the fact that the sovereign territory of a state Contracting Party is also defined in the same article as an "Area". In fact, in defining an ORIE's "Area" as "the Areas of the Member States of such Organisation", the ECT expressly clarifies that the ORIE's territory is simply a collection of defined "Areas" within state Contracting Parties, which are still individually recognised and defined under the ECT. Disputes brought under Article 26 "in the Area of" a Contracting Party do not, therefore, refer only to the Area of the ORIE to the exclusion of Areas of state Contracting Parties such as Spain and the United Kingdom.
In the Tribunal's analysis, the Article is designed to maintain equal representation between Contracting Parties such as to recognise the equal status of Contracting Parties who are members of an ORIE and other Contracting Parties. If the ECT had intended for multiple Contracting Parties of the same ORIE to be denied the possibility of seeking arbitration under Article 26(3), a voting regime more consistent with this intention would have entitled the ORIE to only one vote on issues which fell within its competence.
Spain's reliance on Article 25, concerning Economic Integration Agreements, is also of no assistance to its argument because that provision merely clarifies that the ECT does not require any preferential treatment between EU Member States under EU treaties to be extended to non-EU Contracting Parties of the ECT. It has no bearing upon the application of ECT provisions to Contracting Parties and Investors from within the EU. It stretches logic to conclude on basis of Article 25 that "the ECT expressly recognises the principle of primacy of EU law in intra-EU relationships"436 and that therefore Article 26 does not apply to the present dispute.
[A]lthough the EU is a party to the ECT, EU Member States also remain contracting parties to the ECT. Both the EU and [its] Member States can have legal standing as respondents in a claim under the ECT. Investors organized in accordance with the law of any Contracting Party satisfy Article (1)(7)(a)(ii)'s literal requirement to be an "Investor" of a "Contracting Party." And, a dispute involving such an Investor and another Contracting Party regarding an Investment in that Contracting Party's "Area" satisfies the literal requirements for compulsory dispute settlement under ECT Article 26(1) and (2).
The Tribunal is not persuaded by this interpretation of Article 26(6). Article 26(6) asks the Tribunal to decide issues in accordance with the ECT and "applicable" rules and principles of international law. Even if EU law can be characterised as a form of international or supranational law, its applicability to the present arbitration has not been established. As the tribunals in Novenergia and Eiser concluded, arbitral tribunals formed under the ECT are not constituted on the basis of the "European legal order".440 Furthermore, the phrase "issues in dispute" referred to in Article 26(6) has been understood as referring to the law relevant to resolving the merits of the dispute.441 In the present case, as the Tribunal will elaborate further on its reasoning on the merits at Part Q6 of the Award, the claims brought by FREIF do not concern any alleged breaches of EU law. As the Novenergia tribunal observed after analysing a series of other arbitral awards and the EC Decision dated 10 November 2017 on whether Spain's New Regulatory Regime constitutes "State Aid" under EU law:442
a foreign investor who initiates an ECT arbitration towards a host State invoking protection under the FET standard does not abuse its rights nor incorrectly bypasses EU law. This is because EU law does not recognise, nor prohibit, a similar right. Simply said, the two legal orders do not share the same subject matter, but may easily coexist to the extent that they do not interfere with each other.
this Tribunal has been established by a specific treaty, the ECT, which binds both the EU and its Member States on the one hand and non-EU States on the other hand. As for the latter, EU law is res inter alios acta and it cannot be upheld that, by ratifying the ECT, those non-EU States have accepted the EU law as prevailing over the ECT. The ECT is the "constitution" of the Tribunal… This is what the Parties to the ECT agreed amongst themselves; it is not within the jurisdiction of the Tribunal to alter this.
If the Respondent's theory were true, no domestic court would ever be able to decide on anything concerning the interpretation of EU treaties at any time that the liability of a Member State was at stake. Notwithstanding, the truth is that many claims have been filed against Member States before domestic courts, in which the interpretation or the application of EU treaties could be at stake. Similarly, a Member State can enter into arbitration agreements to resolve disputes that may involve issues concerning EU law. Finally, it is now universally accepted that an arbitration tribunal does not only have the power, but also the duty, to apply EU law.
Therefore, the scope of Article 344 TFEU cannot be so broad as to prevent Member States from submitting any dispute concerning the interpretation of EU treaties to a dispute settlement procedure different from those provided in EU legislation.
It is true that Achmea refers to a case in which the dispute is subject to arbitration in accordance with a BIT entered into by two Member States. However, the Judgment's principles should apply to the ECT if the dispute raised under it requires the interpretation and/or application of EU law, thus affecting the latter's autonomy.
The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected.
with respect to international agreements entered into by the Union, the jurisdiction of the courts and tribunals specified in Article 19 TEU to interpret and apply those agreements does not take precedence over either the jurisdiction of the courts and tribunals of the non-Member States with which those agreements were concluded or that of the international courts or tribunals that are established by such agreements.
(7) For the purposes of this Article:
a) The term "taxation measure" includes:
i) Any provision relating to taxes of the domestic law of the Contracting Party or of a political subdivision thereof or a local authority therein; and;
ii) any provision relating to taxes of any convention for the avoidance of double taxation or of any other international agreement by which the Contracting Party is bound.
Spain's case is that the TVPEE is a tax under either Spanish domestic law or international law. This conclusion is supported by:457
(a) the reference to "domestic law" in Article 21(7)(a)(i), which is said to import the application of Spanish domestic law; and
(b) Article 26(6) of the ECT, which requires that a tribunal established under the ECT apply "principles of international law".
Article 21(1) of that same Part makes clear that the Treaty creates no rights or obligations concerning Taxation Measures "[e]xcept as otherwise provided in this Article".460 As there is no applicable exception in the present case and Article 10(1) of the ECT does not create obligations with respect to taxation measures, Spain argues that there are no rights for investors to bring a claim with respect to taxation measures.
applies to all facilities for electricity production, both from renewable and conventional sources. The tax base for the TVPEE consists of the total amount that the taxpayer is to receive for the production of electrical energy and its incorporation into the electricity system, measured in power plant busbars, at each facility, in the taxable period. The applicable tax rate is 7%.
"…the taxpayer of the [TVPEE] must record an expense for it, in the month of November of each year, an expense that will be fiscally deductible in the taxable period when it was recorded."