Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

LIST OF ABBREVIATIONS AND DEFINITIONS

Claimant Iberdrola Energía, S.A (also referred to as "Iberdrola")
CM Claimant’s Counter-Memorial on Jurisdiction, Admissibility and Counterclaim, dated 31 October 2018
CNEE Comisión Nacional de Energía Eléctrica
Consortium Iberdrola, TPS de Ultramar and EDP Electricidade de Portugal
Contracting Parties The Kingdom of Spain and the Republic of Guatemala
Counterclaim Counterclaim included in the Respondent’s Memorial on Objections to Jurisdiction and Admissibility of Claims, dated 19 July 2018
C-PHB1 Claimant’s Submission on Article 26 of the ICSID Convention dated 27 September 2019
C-PHB2 Claimant’s Submission on the Tribunal’s Questions of 10 December 2019, dated 10 January 2020
DECA Distribución Eléctrica Centroamericana S.A. (later "DECA II")
Decision on Bifurcation Decision on Bifurcation, dated 14 March 2019
EDP EDP Electricidade de Portugal
EEGSA Empresa Eléctrica de Guatemala, S.A.
Expert Commission Commission formed by three experts appointed by the distributor and the CNEE in case of disagreement on the review of the tariff studies
FET Fair and equitable treatment
Hearing on Preliminary Objections Hearing on Preliminary Objections held on 4 June 2019 at the Peace Palace, The Hague, the Netherlands
Iberdrola I Iberdrola Energía, S.A. v. Guatemala, ICSID Case No. ARB/09/5
Iberdrola I Award Iberdrola Energía, S.A. v. Republic of Guatemala, ICSID Case No. ARB/09/5, Award of 17 August 2012
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on 18 March 1965
ILA International Law Association
LGE General Electricity Law, Decree 93-96, dated 16 October 1996
Mem. Respondent’s Memorial on Objections to Jurisdiction and Admissibility of Claims, dated 19 July 2018
NAFTA North American Free Trade Agreement
Notice of Arbitration Claimant’s Notice of Arbitration, dated 15 November 2017
Parties The Claimant and the Respondent
PCA Permanent Court of Arbitration
PILA Swiss Private International Law Act
Reinisch Report Legal Opinion of August Reinisch on the Scope and Limits of the Res Judicata Effect of the Award in Iberdrola Energia S.A. v. Republic of Guatemala, ICSID Case No. ARB/09/5, Award, 17 August 2012, dated 26 October 2018
Reisman Report Opinion of Prof. W. Michael Reisman on the Effects of a "Partial res judicata" in International Law and Its Implications, dated 17 October 2018
Rejoinder Claimant’s Rejoinder on Jurisdiction, Admissibility and Counterclaim, dated 22 February 2019
Rejoinder on the Counterclaim Respondent’s Rejoinder on Jurisdiction of the Counterclaim, dated 8 March 2019
Reply Respondent’s Reply on Objections to Jurisdiction and Admissibility of Claims, dated 21 December 2018
Respondent The Republic of Guatemala (also referred to as "Guatemala")
RLGE Regulation of the General Electricity Law, dated 21 March 1997
R-PHB1 Respondent’s Post-Hearing Brief, dated 13 September 2019
R-PHB2 Respondent’s Second Post-Hearing Brief, dated 10 January 2020
SFSC Swiss Federal Supreme Court
Tariff-Setting Process Measures taken by the Guatemalan authorities in the context of fixing tariffs for the distribution of electricity for the 2008-2013 period
TECO TPS de Ultramar
Teco I Teco Guatemala Holdings, LLC v. the Republic of Guatemala (ICSID Case No. ARB/10/17)
Teco II Teco Guatemala Holdings, LLC v. the Republic of Guatemala (ICSID Case No. ARB/10/23)
Terms of Appointment Terms of Appointment, dated 1 June 2018
ToR Terms of Reference
Transcript Transcript of the Hearing on Preliminary Objections (final version circulated on 24 June 2019)
Treaty Agreement between the Kingdom of Spain and the Republic of Guatemala for the Mutual Promotion and Protection of Investments, signed on 9 December 2002 and entered into force on 21 May 2004 (also referred to as "BIT")
Tribunal Arbitral Tribunal in the present case
UNCITRAL Rules Arbitration Rules of the United Nations Commission on International Trade Law 1976
UNCLOS United Nations Convention on the Law of the Sea of 10 December 1982
VAD Valor Agregado de Distribución
VCLT Vienna Convention on the Law of Treaties of 23 May 1969

I. Introduction and Parties

A. The Claimant

1.
The Claimant is Iberdrola Energía, S.A. ("Iberdrola" or the "Claimant"), a corporation (sociedad anónima unipersonal) incorporated in Spain, with its domicile at:

Tomás Redondo, 1
28033 Madrid
Spain

2.
It is represented in this arbitration by:

Félix Sobrino Martínez
María Grande de Capua
Iberdrola Energía, S.A.
Tomás Redondo, 1
28003 Madrid
Spain

E-mail: fsobrino@iberdrola.es
mgrande@iberdrola.es

Gabriel Bottini
Gillian Cahill
Heidi López Castro
Uría Menéndez Abogados, S.L.P.
Príncipe de Vergara, 187
Plaza de Rodrigo Uría
28002 Madrid
Spain

E-mail: gabriel.bottini@uria.com
gillian.cahill@uria.com
heidi.lopez@uria.com
proc.iberdrola.guatemala@uria.com

Miguel Virgós
Serrano 240, 1°
28016 Madrid
Spain

E-mail: miguel.virgos@virgosarbitration.com

B. The Respondent

3.
The Respondent is the Republic of Guatemala ("Guatemala" or the "Respondent").
4.
It is represented in this arbitration by:

Jorge Luis Donado Vivar
Procurador General de la Nación
Ana Luisa Gatica Palacios
Mario René Mérida Pichardo
15 Av.9-69, zona 13
Ciudad de Guatemala
Guatemala

E-mail: despachosuperior@pgn.gob.gt
ana.gaticap@pgn.gob.gt
mario.meridap@pgn.gob.gt

Roberto Antonio Malouf Morales
Ministro de Economía
Alba Edith Flores Ponce de Molina
Viceministra de Integración y Comercio Exterior
8a Avenida 10-43 zona 1
Ciudad de Guatemala
Guatemala

E-mail: ramalouf@mineco.gob.gt
edemolina@mineco.gob.gt

Eduardo Silva Romero
Audrey Caminades
Dechert (Paris) LLP
32, Rue de Monceau
Paris, 75008
France

E-mail: eduardo.silvaromero@dechert.com
audrey.caminades@dechert.com

Juan Felipe Merizalde
Dechert (Paris) LLP
1900 K Street, NW
Washington D.C., 20006
United States of America

E-mail: juanfelipe.merizalde@dechert.com
caso-iberdrola@dechert.com

C. The Arbitral Tribunal

5.
The Arbitral Tribunal (the "Tribunal") is composed of:

Prof. Gabrielle Kaufmann-Kohler (President)
Lévy Kaufmann-Kohler
3-5, rue du Conseil-Général
CH-1211 Geneva 4
Switzerland
Tel.: +41 22 809 6200
E-mail: gabrielle.kaufmann-kohler@lk-k.com

Prof. Pierre-Marie Dupuy (Co-Arbitrator)
Richard Sorge Strasse 23 /De
10249 Berlin
Germany
Tel.: +33 6 77 95 24 38
E-mail: pierre-marie.dupuy@graduateinstitute.ch

J. Christopher Thomas, QC (Co-Arbitrator)
1200 Waterfront Centre
200 Burrard Street, Mail Box #48600
Vancouver, BC V7X 1T2
Canada
Tel: +1-604 640-4058
E-mail: jcthomas@thomas.ca

6.
With the consent of the Parties, the Tribunal appointed Ms. Sabina Sacco as its Secretary:

Ms. Sabina Sacco
Lévy Kaufmann-Kohler
3-5, rue du Conseil-Général
CH-1211 Geneva 4
Switzerland
Tel.: +41 22 809 62 00
E-mail: sabina.sacco@lk-k.com

D. Seat of the Arbitration

7.
In its Notice of Arbitration, dated 15 November 2017 (the "Notice of Arbitration"), the Claimant initially suggested The Hague as the place of arbitration. In its letter to the Claimant dated 22 December 2017, the Respondent proposed Paris as the legal seat of the arbitration. After considering the Parties’ positions and all relevant factors, the Tribunal fixed Geneva, Switzerland, as the seat of the arbitration.

II. Procedural History

8.
On 15 November 2017, the Claimant submitted a Notice of Arbitration, invoking Article 11 of the Agreement between the Kingdom of Spain and the Republic of Guatemala for the Mutual Promotion and Protection of Investments, which was signed on 9 December 2002 and entered into force on 21 May 2004 (the "Treaty" or the "BIT") and the Arbitration Rules of the United Nations Commission on International Trade Law 1976 (the "UNCITRAL Rules"). The Notice of Arbitration was received by the Respondent on 23 November 2017.
9.
In its Notice of Arbitration, the Claimant proposed that (i) three arbitrators be appointed; (ii) the arbitration be conducted in English and Spanish; (iii) the seat of the arbitration be The Hague, the Netherlands; and (iv) the Permanent Court of Arbitration (the "PCA") administer the proceedings. In its Notice of Arbitration, the Claimant also appointed Prof. Pierre-Marie Dupuy, a national of France, as the first arbitrator.
10.
By letter dated 22 December 2017, the Respondent (i) agreed that three arbitrators be appointed, that the proceedings be conducted in Spanish and English and that the PCA administer the proceedings; (ii) proposed that the seat of the arbitration be Paris, France; and (iii) proposed that the Parties attempt to agree on the presiding arbitrator within 45 days, following which either Party would be allowed to request that the Secretary-General of the PCA, acting as appointing authority, appoint the presiding arbitrator in accordance with Article 7(2) of the UNCITRAL Rules. In this letter, the Respondent also appointed Mr. J. Christopher Thomas QC, a national of Canada, as the second arbitrator.
11.
By their respective communications of 9 and 15 January 2018, the Parties informed the PCA that they had agreed for it to act as administering institution, and as appointing authority in the event that the Parties failed to agree on a choice of presiding arbitrator within 45 days.
12.
The Tribunal was constituted on 8 February 2018, when the Parties confirmed the appointment of Prof. Gabrielle Kaufmann-Kohler, a national of Switzerland, as the Presiding Arbitrator.
13.
By letter dated 28 February 2018, the Tribunal (i) invited the Parties to comment on draft terms of appointment and a draft procedural order; (ii) proposed dates for a first procedural conference; and (iii) proposed that Ms. Sabina Sacco be appointed as Secretary of the Tribunal.
14.
On 3 April 2018, the Parties submitted joint comments on the draft terms of appointment and procedural order. Inter alia, the Parties agreed that they would exchange two rounds of written briefs on the Respondent’s preliminary objections. The Claimant proposed that the written briefs be followed by a procedural order on bifurcation, following which the Tribunal would either hold a hearing on preliminary objections or convene a procedural hearing to fix the calendar for the subsequent phase of the proceedings. The Respondent proposed that a hearing on preliminary objections be held after the filing of the last written brief on preliminary objections.
15.
By letter dated 12 April 2018, the Tribunal proposed alternative dates for the first procedural conference in light of the Parties' unavailability on the dates proposed by the Tribunal. The Tribunal also noted the Parties' agreement on the sequence and timing of the first round of written briefs, and, subject to any objection from either Party, fixed the deadlines for the Respondent to submit its Preliminary Objections and for the Claimant to submit its Response thereto. On 12 and 13 April 2018, the Respondent and the Claimant respectively confirmed their agreement that the starting date of the procedural calendar be fixed on 20 April 2018, as proposed by the Tribunal.
16.
On 11 May 2018, the Parties and the Tribunal held the first procedural conference. The Claimant was represented at the conference by Mr. Félix Sobrino Martínez of Iberdrola Energía, S.A.; and Mr. Miguel Virgós, Mr. Gabriel Bottini, Ms. Gillian Cahill, Ms. Heidi López, Ms. Eugenia Simó and Ms. Jana Lamas de Mesa of Uría Menéndez Abogados, S.L.P. The Respondent was represented at the conference by Ms. Ana Luisa Gatica and Ms. Lilian Náj era of the Procuraduría General de la Nación of Guatemala; Ms. Gabriela Hernández, Mr. Francisco Vásquez and Mr. Jorge Mario Andrade of the Ministry of Economy of Guatemala; Mr. Eduardo Silva Romero and Ms. Andrea Zumbado of Dechert (Paris) LLP; and Mr. Juan Felipe Merizalde of Dechert LLP.
17.
Subsequent to the procedural conference held on 11 May 2018, on 1 June 2019, the Tribunal circulated a finalized version of the Terms of Appointment for signature and issued Procedural Order No. 1, in which it (i) fixed Geneva (Switzerland) as the seat of the arbitration; (ii) established the regime for confidentiality and transparency of the proceedings; (iii) set forth rules governing the languages of the arbitration; and (iv) established a procedural timetable. The said procedural timetable fixed a calendar for written submissions leading to a decision on bifurcation, in which the Tribunal would determine whether:

a. It can resolve the Respondent's preliminary objections without reviewing the merits of the case, in which case the proceedings will continue to be bifurcated, and the next step will be a hearing on preliminary objections, or

b. It cannot resolve the Respondent's preliminary objections without going into the merits of the case, in which case it will join the preliminary objections to the merits and convene a procedural hearing to establish a calendar for the joined jurisdiction and merits phase.

18.
On 12 June 2018, following consultations with the Parties, the Tribunal fixed the date for a hearing on preliminary objections (should the proceedings be bifurcated) on 4 June 2019 (and, if necessary, 5 June 2019) (the "Hearing on Preliminary Objections").
19.
On 16 July 2018, the Tribunal circulated the consolidated executed Terms of Appointment (the "Terms of Appointment").
20.
On 19 July 2018, the Respondent filed its Memorial on Objections to Jurisdiction and Admissibility of Claims ("Mem."), which included a counterclaim (the "Counterclaim").
21.
On 25 July 2018, the Tribunal fixed a calendar for written submissions on the Counterclaim.
22.
On 28 September 2018, the Parties agreed that the Hearing on Preliminary Objections be held at the Peace Palace, The Hague, the Netherlands. The Tribunal confirmed the Parties’ agreed venue for the hearing on 1 October 2018.
23.
The Claimant filed its Counter-Memorial on Jurisdiction, Admissibility and Counterclaim on 31 October 2018 ("CM").
24.
The Respondent filed its Reply on Objections to Jurisdiction and Admissibility of Claims on 21 December 2018 (the "Reply").
25.
On 22 February 2019, the Claimant filed its Rejoinder on Jurisdiction, Admissibility and Counterclaim (the "Rejoinder").
26.
On 8 March 2019, the Respondent filed its Rejoinder on Jurisdiction on the Counterclaim (the "Rejoinder on the Counterclaim").
27.
On 14 March 2019, the Tribunal issued its Decision on Bifurcation (in English and Spanish) (the "Decision on Bifurcation"), in which it decided as follows:1

a. Subject to paragraph (b) below, the Respondent’s primary and alternative objections to jurisdiction and/or admissibility shall be bifurcated;

b. The Tribunal reserves the possibility to join the Respondent’s alternative objection that the claims fall outside of its ratione materiae jurisdiction to the merits after the hearing;

c. The hearing scheduled for 4 June 2019 (with 5 June 2019 as reserve day) is confirmed;

d. The Respondent shall indicate if it wishes to call any of the Claimant’s experts for cross-examination by 15 April 2019;

e. A pre-hearing conference call will be held on one of the following days and times: 23, 24, 25, or 26 April at 15:00, 16:00 or 17:00 CET. The Parties are invited to state whether they are available on such dates and times by 21 March 2019. Unless either Party objects within that time limit, this conference shall be conducted by the Presiding Arbitrator on behalf of the Tribunal;

f. The Tribunal will issue a decision on the Respondent's counterclaim together with its decision on the Respondent's objections;

g. The Tribunal defers its decision on costs to a later stage.

28.
On 3 April 2019, the Tribunal confirmed that the pre-hearing conference would take place on 25 April 2019.
29.
On 23 April 2019, the Tribunal circulated a draft procedural order for comments and finalization during the pre-hearing conference.
30.
On 25 April 2019, the Tribunal and the Parties held the pre-hearing conference. The Claimant was represented at the conference by Ms. María Grande and Mr. Félix Sobrino of Iberdrola Energía, S.A.; and Mr. Miguel Virgós, Mr. Gabriel Bottini and Mr. Sebastián Green of Uría Menéndez Abogados, S.L.P. The Respondent was represented at the conference by Ms. Ana Luisa Gatica and Ms. Lilian Nájera of the Procuraduría General de la Nación of Guatemala; Mr. Eduardo Silva Romero of Dechert (Paris) LLP and Mr. Juan Felipe Merizalde of Dechert LLP.
31.
On 26 April 2019, the Tribunal issued Procedural Order No. 2, deciding the outstanding issues pertaining to the organization of the Hearing on Preliminary Objections.
32.
On 6 May 2019, the Tribunal circulated a Spanish translation of Procedural Order No. 2.
33.
The Hearing on Preliminary Objections was held on 4 June 2019 at the Peace Palace, The Hague, the Netherlands. The following individuals were in attendance:

Tribunal:
Prof. Gabrielle Kaufmann-Kohler (Presiding Arbitrator)
Prof. Pierre-Marie Dupuy
Mr. J. Christopher Thomas QC

Secretary of the Tribunal
Ms. Sabina Sacco

PCA
Mr. José Luis Aragón Cardiel, Legal Counsel
Ms. Juana Martínez Quintero, Assistant Legal Counsel

Claimant
Mr. Félix Sobrino Martínez, Iberdrola Energía, S.A.
Ms. María Grande de Capua, Iberdrola Energía, S.A.
Mr. Miguel Virgós, Uría Menéndez Abogados, S.L.P
Mr. Gabriel Bottini, Uría Menéndez Abogados, S.L.P
Mr. Sebastián Green Martínez, Uría Menéndez Abogados, S.L.P
Ms. Jana Lamas de Mesa, Uría Menéndez Abogados, S.L.P
Mr. Daniel García Clavijo, Uría Menéndez Abogados, S.L.P

Respondent
Mr. Jorge Luis Donado Vivar, Procurador General de la Nación
Mr. Mario de Jesús Morales, Asesor de Despacho Superior de la Procuraduría General de la Nación
Ms. Ana Luisa Gatica Palacios, Jefe de la Unidad de Asuntos Internacionales de la Procuraduría General de la Nación
Ms. Karla Estefanía Liquez Aldana, Asesora Legal Vicedespacho de Integración y Comercio Exterior, Ministerio de Economía
Ms. Agnese Borsoi Jaureguí Asesora de Defensa Comercial, Dirección de Administración de Comercio Exterior, Ministerio de Economía
Mr. Eduardo Silva Romero, Dechert (Paris) LLP
Ms. Audrey Caminades, Dechert (Paris) LLP
Mr. Juan Felipe Merizalde, Dechert LLP
Ms. Ana María Durán López, Dechert LLP

Court Reporters
Ms. Michelle Kirkpatrick

Interpreters
Mr. Tomás José González
Mr. José Antonio Carvallo-Quintana

IFS Audiovisual
Mr. Erwin van den Bergh

Solve IT
Mr. Sybren Emmelkamp

34.
On 5 June 2019, the Tribunal requested that the Parties file their costs statements within two weeks after the final version of the transcript of the Hearing on Preliminary Objections had been circulated, following which each Party would be allowed to comment on the other Party's costs statement within one week of receipt.
35.
The final version of the transcript of the Hearing on Preliminary Objections was circulated on 24 June 2019 (the "Transcript").
36.
The Parties filed their Statements of Costs on 8 July 2019. On 9 July 2019, the Claimant provided a corrected version of its Statement of Costs. On 16 July 2019, the Parties submitted comments on the other Party's Statement of Costs.
37.
On 29 July 2019, the Tribunal invited the Parties to file additional post-hearing briefs on an argument raised by the Respondent for the first time during the Hearing on Preliminary Objections related to Article 26 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention").
38.
The Respondent filed its Post-hearing Brief on 13 September 2019 ("R-PHB1").
39.
The Claimant filed its Submission on Article 26 of the ICSID Convention on 27 September 2019 ("C-PHB1").
40.
On 10 December 2019, the Tribunal invited the Parties to file, by 10 January 2020, additional post-hearing briefs (i) addressing whether, when assessing the Respondent's res judicata objection, the Tribunal should consider Swiss international arbitration law in addition to international law, and (ii) in the affirmative, establishing the content of Swiss international arbitration law on res judicata with respect to negative jurisdictional awards.
41.
On 10 January 2020, the Parties filed their submissions on the notion of res judicata under Swiss international arbitration law ("C-PHB2" and "R-PHB2", respectively).
42.
On 10 June 2020, the Claimant noted the issuance of the award in Teco Guatemala Holdings, LLC v. the Republic of Guatemala (ICSID Case No. ARB/10/23) Resubmission Proceeding ("Teco II"), and noted that it was "in the Tribunal's hands" should it deem it useful to hear the Parties' views on the said award.
43.
On 19 June 2020, the Respondent noted that the Claimant made no specific request to the Tribunal in connection with the Teco II award and declined to make further comments.
44.
On 23 June 2020, the Tribunal noted that neither Party had requested leave to make submissions on the Teco II award and that, having taken cognizance of the said award, it did not consider further submissions necessary.

III. Overview of the Dispute and Relief Sought

A. Undisputed facts

45.
The following facts appear to be undisputed by the Parties.
46.
Iberdrola is a Spanish investor who made an investment in Guatemala's electricity sector. Specifically, in 1998 Iberdrola, together with TPS de Ultramar ("TECO") and EDP Electricidade de Portugal ("EDP", and jointly with Iberdrola and TECO, the "Consortium"), acquired 80.8% of Empresa Eléctrica de Guatemala, S.A. ("EEGSA").2
47.
Within the framework of the General Electricity Law of 1996 (the "LGE"), Guatemalan authorities took certain measures in the context of fixing tariffs for the distribution of electricity for the 2008-2013 period (the "Tariff-Setting Process"), with which EEGSA disagreed.3 That process has given rise to different proceedings:

i. First, in August 2008, EEGSA initiated proceedings before the Guatemalan administrative and judicial courts against the National Electric Energy Commission (Comisión Nacional de Energía Eléctrica or the "CNEE"),4 arguing that the CNEE's resolutions determining the tariffs were not in accordance with Guatemalan law.5 These proceedings included three constitutional amparo actions,6 which were finally decided against EEGSA by the Guatemalan Constitutional Court.7

ii. Second, in March 2009, Iberdrola initiated an arbitration against Guatemala before the International Centre for Settlement of Investment Disputes ("ICSID"), invoking provisions of the Treaty ("Iberdrola I"). The Iberdrola I tribunal declined jurisdiction with respect to all of Iberdrola's claims with the exception of its claim for denial of justice, which the tribunal dismissed on the merits.8 Specifically, the Iberdrola I tribunal found that the facts alleged by Iberdrola, even if proven, could not amount to a breach of the Treaty.9 Instead, the tribunal concluded that Iberdrola's claims involved issues of domestic law which were not covered by the Treaty dispute resolution clause. It thus denied jurisdiction.

iii. Third, Iberdrola initiated annulment proceedings pursuant to Article 52 of the ICSID Convention with respect to the Iberdrola I award. By a majority, the ad hoc Committee denied Iberdrola's annulment request.10

B. Overview of the Respondent’s case and request for relief

48.
Essentially, the Respondent's case is that the dispute before this Tribunal has already been litigated before the Guatemalan courts and arbitrated before an ICSID tribunal and must thus end now.11 By initiating this arbitration, the Claimant is said to have committed three abuses of process, any one of which suffices for the Tribunal to decline jurisdiction and impose upon the Claimant an exemplary and deterrent award on costs.12
49.
Citing decisions of the International Court of Justice (the "ICJ"), the Respondent submits that, to ensure the preservation of social peace, the stability of legal relations requires that litigation must come to an end.13 It thus contends that, even if the dispute on the Tariff-Setting Process did not end with the decisions of the Guatemalan Constitutional Court, fairness demands that the Claimant should cease its actions against Guatemala after the Iberdrola I award and decision on annulment. In violation of this principle, the Claimant has brought these UNCITRAL proceedings. In doing so, it has engaged in the following three abuses of process:

i. The Claimant has brought this claim in open disregard for the negative effect of res judicata. The Claimant has brought a claim based on the same facts and between the same parties, and its attempts to distinguish the legal basis of the claim are unavailing. In Iberdrola I, the Claimant brought claims under the Treaty (although the tribunal held that, even if proven, the facts alleged were not susceptible of constituting Treaty breaches). The triple identity test has been met and the Tribunal must decline jurisdiction. Were the Tribunal to hold otherwise, it should conclude that Iberdrola's international law claims are precluded in application of the principle of concentration of arguments and claims, according to which it is the claimant's duty to invoke all of its legal arguments when submitting its first claim.14

ii. Alternatively, the Claimant has violated the fork in the road clause of the Treaty (Article 11(2)). Although this clause requires a claimant to bring suit in one forum only, the Claimant has acted in three fora : the first instance court and then the Constitutional Court of Guatemala, ICSID and this Tribunal. This breach of the fork-in-the-road provision is the ground for the counterclaim.15 Even if Article 11(2) of the Treaty were not a fork-in-the-road provision, the Respondent argues that Article 26 of the ICSID Convention precludes the Claimant from bringing this arbitration.

iii. Alternatively, the claim amounts to harassment and abuse of right. As explained by the Orascom tribunal, "the initiation of multiple proceedings to recover for essentially the same economic harm would entail the exercise of rights for purposes that are alien to those for which these rights were established."16

50.
The Respondent also argues in the alternative that Iberdrola's actions violate Article 53(2) of the ICSID Convention and, as a result, Iberdrola's claims are excluded from this Tribunal's jurisdiction. The fact that this Tribunal has been constituted under the 1976 UNCITRAL Arbitration Rules is no impediment to reaching that conclusion.17
51.
In the final alternative, if the Tribunal were to consider that Iberdrola can reformulate its claims under the Treaty, these claims would still be beyond the Tribunal's jurisdiction because they relate exclusively to Guatemalan law. In addition, this dispute was already resolved by the Guatemalan courts and the Tribunal cannot act as an appellate court in relation to determinations of national law rendered by the Respondent's courts.18
52.
The Respondent also raises a counterclaim, arguing that the Tribunal must sanction the Claimant for its systematic and abusive resubmission of the same claim. Under basic notions of justice, it would be insufficient for the Tribunal to decline jurisdiction and impose costs; the Tribunal must also uphold the counterclaim and award damages to the Respondent. More specifically, the Respondent argues that the Claimants' violation of the Treaty's fork in the road clause at Article 11(2) has caused it damage, for which the Respondent seeks compensation.19
53.
On this basis, the Respondent requests the following relief:20

In view of the foregoing, reserving the right to subsequently supplement, develop or modify its position and in the appropriate phases of these proceedings, Guatemala respectfully requests the Tribunal to:

a. Declare that it lacks jurisdiction over the claims of the Claimant;

b. Otherwise, declare that the claims of the Claimant are inadmissible;

c. Declare that it has jurisdiction over Guatemala's Counterclaim in accordance with Article 11(1) of the Treaty and Article 19 of the UNCITRAL Rules of 1976;

d. Declare that the Claimant violated Article 11(2) of the Treaty;

e. Order the Claimant to pay the amount of at least US$2 million plus all amounts incurred for costs and legal expenses in this arbitration, as reparation for the damages caused, plus interest;

f. In the alternative, and in accordance with Article 40 of the UNCITRAL Rules of 1976, order the Claimant to reimburse Guatemala all costs and legal expenses it incurred in this arbitration, plus interest; and

g. Order any other measures that the Arbitral Tribunal deems appropriate.

54.
In its Reply, the Respondent updated its request for relief as follows:21

In view of the foregoing, reserving the right to subsequently supplement, develop or modify its position and in the appropriate phases of these proceedings, Guatemala respectfully requests the Tribunal to:

a. Declare that it lacks jurisdiction over the claims of the Claimant;

b. Otherwise, declare that the claims of the Claimant are inadmissible;

c. Declare that it has jurisdiction over Guatemala's Counterclaim in accordance with Article 11(1) of the Treaty and Article 19 of the UNCITRAL Rules of 1976;

d. Declare that the Claimant violated Article 11(2) of the Treaty;

e. Order the Claimant to pay the amount of at least USD 2 million plus all amounts incurred for costs and legal expenses in this arbitration, as reparation for the damages caused, plus interest;

f. In the alternative, and in accordance with Article 40 of the UNCITRAL Rules of 1976, order the Claimant to reimburse Guatemala all costs and legal expenses it incurred in this arbitration, plus interest; and

g. Order a hearing to be held on the preliminary objections pursuant to Article 15(2) of the UNCITRAL Rules of 1976; and

h. Order any other measures that the Arbitral Tribunal deems appropriate.

C. Overview of the Claimant’s case and request for relief

55.
The Claimant submits that its claims are treaty claims, which it is entitled to have decided, and that neither res judicata nor the other principles invoked by the Respondent bar the Tribunal’s jurisdiction.
56.
First, the Claimant argues that certain measures taken by Guatemala during EEGSA’s 2008-2013 tariff review amount to "free-standing violations of the Guatemala-Spain BIT, through arbitrary, unfair, and inequitable acts of Guatemalan authorities, in breach of fundamental due process principles."22
57.
Second, the Claimant argues that, as a protected investor under the BIT (a characterization that is undisputed), it has "an international law right to have its treaty claims against those measures decided on their merits."23 It concedes that it is only entitled to one resolution on their merits, "no more but no less."24
58.
Third, the Claimant denies that the Iberdrola I award precludes it from bringing the present claims for the following reasons:

i. With respect to the Respondent’s res judicata objection, the Claimant denies that the triple identity test has been met. It does not deny that there is an identity of parties and concedes that there is some overlap in the subject matter of the dispute (in particular, it acknowledges that "the different claims arise from the same factual matrix").25 It argues, however, that the claims in this dispute are claims under the Treaty, while the claims in Iberdrola I were found to be claims under domestic law, and consequently not based on the same legal ground (causa petendi).26 In any event, as explained in two recent decisions of the ICJ, aside from applying the triple identity test, it is also necessary to ascertain the content of the prior decision. The Iberdrola I tribunal found that the claims submitted to it, as formulated, were national law claims. As the Claimant is now bringing treaty claims that are not premised on breaches of national law, the present claims are not precluded by res judicata.27

ii. The Claimant denies that a "concentration of claims" argument is applicable. The Respondent's argument is based on national court decisions and is "contrary to the basic principles that regulate res judicata in international law", where "res judicata applies only to what has been decided."28

iii. The Respondent's fork-in-the-road objection is similarly meritless. According to the Claimant, Article 11(2) of the BIT does not contain a true fork in the road. Even if it did, it would only apply to claims under Article 11 of the BIT. As none of the claims submitted so far were considered to be claims under Article 11, the fork-in-the-road argument cannot apply.29 Nor does Article 26 of the ICSID Convention bar the present proceedings.

iv. The Claimant strongly denies having committed an abuse of process, noting that this is a serious accusation that should be made only in extreme circumstances, which are "clearly not present here".30 The Claimant insists that it is "simply exercising a right it has to resolve its investment disputes under the Guatemala-Spain BIT through international arbitration, a way of resolving disputes to which Guatemala expressly consented in Article 11 of that Treaty."31 The Claimant emphasizes that it has been open and transparent with the Respondent as to why the Iberdrola I decision did not prevent Iberdrola's treaty claims from being finally determined on their merits.32

v. The Claimant further rejects the Respondent's alternative objection, i.e., that the Tribunal lacks jurisdiction ratione materiae. The Claimant insists that its claims before this Tribunal are "treaty claims not premised on any breach of national law."33

59.
The Claimant thus submits that this Tribunal has full jurisdiction to hear Iberdrola's claims, all of which are admissible, and it must hear them and resolve them on their merits.34
60.
As to the Respondent’s counterclaim, the Claimant contends that the Tribunal lacks jurisdiction to entertain it, and that, by submitting the counterclaim, the Respondent has accepted the Tribunal’s jurisdiction over the claims. Were the Tribunal to uphold jurisdiction on this matter, the Respondent has failed to submit a proper counterclaim. Even if the Tribunal were to consider that a proper counterclaim has been filed, it lacks merit.
61.
For the foregoing reasons, the Claimant requests the following relief in response to the Respondent’s preliminary objections:35

In light of the above, Iberdrola respectfully requests the Tribunal to:

(i) Declare that it is competent to hear Iberdrola’s claims;

(ii) Declare that Iberdrola’s claims are admissible.

(iii) Consequently, dismiss all Objections on Jurisdiction and Admissibility raised by Guatemala;

(iv) Order Guatemala to bear all costs incurred by Iberdrola in relation to Guatemala’s Objections on Jurisdiction and Admissibility, plus interest; and

(v) Order any other relief that the Tribunal may deem fit and proper.

62.
In its Rejoinder, the Claimant updated its request for relief as follows:36

In light of the above, Iberdrola respectfully requests the Tribunal to:

(i) Declare that it has jurisdiction to hear and decide on Iberdrola’s claims;

(ii) Declare that Iberdrola’s claims are admissible;

(iii) Consequently, dismiss all Objections on Jurisdiction and Admissibility raised by Guatemala;

(iv) Dismiss Guatemala's counterclaim;

(v) In due course, find that Guatemala has breached the standards of fair and equitable treatment, full protection and security, the international minimum standard, and the prohibition of arbitrary measures contained in Article 3 of the BIT.

(vi) Order Guatemala to bear all Iberdrola's costs in relation to Guatemala's Objections on Jurisdiction and Admissibility, plus interest; and

(vii) Order any other relief that the Tribunal may deem just.

IV. Factual Background

63.
The facts summarized below are provided to give context to the Parties' jurisdictional arguments. The Tribunal has assessed these facts to the extent necessary to determine the issues of jurisdiction and admissibility raised by the Parties.

A. The Claimant’s investment

64.
Between 1993 and 1997, Guatemala amended the legal framework applicable to the electricity sector, allowing for the participation of private actors. Under the LGE37 and its Regulation of 1998 ("RLGE"),38 distributors of electricity were compensated as follows:

The distributors of electricity in Guatemala, such as EEGSA, were paid for their services (and for the investments necessary to carry out those services) through a component of the tariff, the Valor Agregado de Distibucion or VAD. The VAD of each distributor, including EEGSA, was to be determined through a procedure established under the General Electricity Law of Guatemala (LGE) and its regulation (RLGE). The procedure contemplated the participation of the distributor (in this case EEGSA) in the determination of the VAD and the intervention of an Expert Commission of three members (appointed by the distributor and the regulator) should discrepancies arise between the distributor and the regulator.39

65.
According to the Claimant, the system enshrined two important principles aimed at attracting foreign investment in the electricity sector: the principles of participation and neutrality in the determination of tariffs.40
66.
The Respondent further explains that tariffs were to be calculated every five years on the basis of the sum of the weighted price of all of the distributor's purchases related to the entry to the distribution network and the Valor Agregado de Distribución ("VAD").41 Each distributor was to calculate the components of the VAD through a tariff study entrusted to an engineering firm prequalified by the CNEE under the Terms of Reference by the CNEE (the "ToR").42 The CNEE was then to review such tariff studies and, if necessary, formulate observations. In case of disagreement, the distributor and the CNEE were required to appoint a three-member expert commission (the "Expert Commission"), which would rule on those disagreements, according to the Respondent in a non-binding manner.43
67.
This was the legal framework in which the Claimant decided to invest in Guatemala. Specifically, when Guatemala decided to privatize EEGSA in 1997, Iberdrola joined forces with TECO, a US company, and EDP, with which they formed the Consortium defined in paragraph 46, and ultimately acquired the majority of EEGSA in September 1998.44 The value of EEGSA (i.e., the price paid to the government for it in the privatization) was calculated in accordance with the regulatory framework offered by Guatemala.45 The Consortium held and managed the company through an intermediary company called Distribución Eléctrica Centroamericana S.A. ("DECA", and later "DECA II"). In total, the partners held 80.8% of EEGSA, and Iberdrola's indirect shareholding was 39.64%. The rest was held by other shareholders, including the State of Guatemala (14%).46

B. The facts leading to the dispute

68.
For purposes of the jurisdictional phase, the Parties summarize the main facts as follows.
69.
The Claimant alleges that the VAD for the initial period after the privatization (1999-2003) was established on the basis of a transitional rule, using the values of other countries following comparable methodologies. The procedure for the determination of the VAD under the LGE and RLGE was applied for the first time in the tariff review for the period 2003-2008.47 The Claimant does not appear to have complaints in this respect.
70.
However, the Claimant submits that "[t]hings changed in the tariff setting process for the 2008-2013 period. Indeed, from the very beginning Guatemala made it clear that its intention was to decrease the electricity tariff. The sequence of events that followed was directed to fulfil at all costs this political goal."48 The Claimant further asserts that the Ministry of Energy and Mines modified the RLGE to allow the CNEE to set the tariff in certain exceptional cases without the distributor’s participation.49 During this phase on preliminary objections, the Respondent has not disputed this allegation.
71.
It is the Claimant’s further submission that the CNEE used the ToR for the independent consultant Mercados Energéticos who had to calculate the VAD50 to predetermine the result of the consultant’s study on the VAD. According to the Claimant, the CNEE finally abandoned this strategy in the light of the challenges initiated by EEGSA before the local courts.51 The Respondent opposes that Mercados Energéticos were appointed to move forward with the Tariff-Setting Process and meet the applicable deadlines.52 It confirms that EEGSA withdrew its court challenges upon accepting the modified version of the ToR, which tasked Bates White with preparing new preliminary-stage reports.53
72.
The Claimant also contends that the CNEE sought to determine the outcome of Bates White’s study54 by trying to force the consultant to incorporate comments in its study with which Bates White did not agree. In the Claimant’s view, the CNEE rejected the study prepared by Bates White because it had not incorporated all such comments.55
73.
The Respondent admits filing several observations concerning Bates White’s tariff study. To the CNEE’s surprise, Bates White disregarded most of the observations,56 which prompted the CNEE to reject the study.57
74.
During the constitution of the Expert Commission,58 so the Claimant says, Guatemala tried to influence its composition by modifying the LGE. In the original drafting of the rule, EEGSA and the CNEE were to have each appointed a member and the third one would be appointed by common agreement. However, with the modification of the LGE, in the event of disagreement, the third member would be appointed by Guatemala.59 While the Respondent does not challenge this allegation, it notes that, as a matter of fact, the third member of the Expert Commission was appointed by mutual agreement.60
75.
The Claimant also contends that the CNEE subsequently held ex parte communications with one member of the CNEE and dissolved the Commission when its work had not been completed.61 The Respondent replies that the Expert Commission was dissolved "by virtue of having met the objective of its appointment".62
76.
Thereafter, so the Claimant alleges, through Resolutions 144, 145, and 146-200863 the CNEE completely ignored the report of the Expert Commission and discarded the VAD study of Bates White (although this study had been corrected to reflect the conclusions of the Expert Commission). Instead of relying on Bates White’s study, the CNEE approved a different VAD on the basis of a study prepared by a company called Sigla, which was engaged by the CNEE and did not consider the Expert Commission’s report.64
77.
For the Respondent, the CNEE relied on the Sigla65 study because the new one by Bates White failed to acknowledge some of the Expert Commission’s main observations.66

C. Proceedings arising from this factual matrix

78.
According to the Claimant, these facts gave rise to proceedings before the local courts in which EEGSA challenged the CNEE’s measures and to ICSID proceedings in which Iberdrola claimed that Guatemala had breached the BIT.

1. Domestic proceedings initiated by EEGSA

79.
In the month following the passing of Resolutions 144, 145, and 146/2008, EEGSA (not Iberdrola) initiated several local court proceedings against the CNEE (not the State of Guatemala). The bases of those claims were exclusively alleged to be breaches of Guatemalan law by the CNEE.67 The first instance courts ruled in favor of EEGSA on 31 July 2008, 31 August 2009, and 15 May 2009. However, on 18 November 2009 and 24 February 2010, the Constitutional Court of Guatemala ruled in favor of the CNEE.68

2. Iberdrola I

80.
In parallel with the local court proceedings, on 16 March 2009, following the expiration of the six-month cooling-off period under the BIT, Iberdrola initiated ICSID proceedings against Guatemala. The Claimant's request for relief is quoted in Section V.C.2 below. Essentially, the Claimant sought declarations that Guatemala had breached its obligation under the expropriation and fair and equitable ("FET") standards enshrined in the BIT and claimed compensation for the harm caused by those breaches.69
81.
The Iberdrola I tribunal declined jurisdiction over all of Iberdrola's claims save one (denial of justice), which it dismissed on the merits.
82.
The Iberdrola I tribunal's reasoning will be discussed in the analysis section below. It suffices to mention here that, on the basis of Article 11 of the BIT, the tribunal observed that Guatemala's consent to arbitrate was limited to disputes over "matters regulated" by the Treaty.70 After reviewing each of the claims, it concluded that, as a result of the manner in which the Claimant had pleaded its claims, it had actually only raised claims under local law as opposed to claims under the BIT and dismissed the claim.71

3. The annulment proceedings against the Iberdrola I Award

83.
On 11 December 2012, Iberdrola initiated annulment proceedings against the Iberdrola I Award under Article 52 of the ICSID Convention. In support of its request for annulment, the Claimant argued that the tribunal had manifestly exceeded its power (Article 52(b)), had seriously departed from a fundamental rule of procedure (Article 52(d)), and had failed to state its reasons (Article 52(e)).72
84.
The ad hoc committee, by a majority, denied the request for annulment. It held that none of the grounds invoked were well-founded.73 Specifically, it gave the following reasons for dismissing Iberdrola's request:

i. The ad hoc committee found that the Iberdrola I tribunal did not manifestly exceed its power. It noted that arbitral tribunals have the authority to characterize the claims submitted by the parties from a legal perspective, and that the Iberdrola I tribunal’s approach in this regard, while strict, had been reasonable.74

ii. The Iberdrola I tribunal did not depart from any fundamental rule of procedure. First, because the Iberdrola I tribunal had the authority to make a procedural decision, such as ruling that the claimant could not modify the relief sought after the hearing.75 Second, the Iberdrola I tribunal addressed in its award each of Iberdrola’s claims.76

iii. The ad hoc committee found, after reviewing the structure of the reasoning of the Iberdrola I tribunal in its Award, that the tribunal had properly stated its reasons.77

85.
As discussed below,78 the Parties disagree on the interpretation of the ad hoc committee’s decision, and on whether it confirms that the negative decision of the Iberdrola I tribunal on jurisdiction carries res judicata effects.

4. Institution of the present arbitration

86.
On 15 November 2017, the Claimant initiated the present UNCITRAL arbitration under the BIT.79 The Claimant’s prayers for relief are quoted in Section III.C above and further discussed in the analysis (Section V.C.2). Essentially, Iberdrola seeks declarations that the Tribunal has jurisdiction over this dispute80 and that the Respondent has violated its Treaty obligations in respect of expropriation and FET,81 as well as compensation for the damage resulting from these violations.82

5. The Teco arbitrations

87.
In October 2010, TECO (one of Iberdrola’s partners in the investment in EEGSA) initiated an investment arbitration against Guatemala under the provisions of the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR) based on the same factual matrix ("Teco I"). The Teco I tribunal held that these facts constituted a breach of the protection standards of the CAFTA-DR.83
88.
It is noteworthy in the present context that the Teco I tribunal stressed that "[t]he fact that, in order to assess the Respondent’s alleged responsibility in international law, the Arbitral Tribunal will have to decide certain points of interpretation of the regulatory framework by applying Guatemalan law, does not and cannot deprive the Arbitral Tribunal of its jurisdiction."84 The tribunal also mentioned that its "task is not and cannot be to review the findings made by the courts of Guatemala under Guatemalan law"; it is "rather to apply international law to the facts in dispute, including the content of Guatemalan law as interpreted by the Constitutional Court."85
89.
The Teco I tribunal ordered Guatemala to pay approximately USD 21 million in damages. Both TECO and Guatemala initiated annulment proceedings against the award. On 5 April 2016, the ad hoc committee annulled part of the award relating to damages and otherwise denied the annulment.
90.
While the Claimant relies on the Teco I tribunal’s findings to support its case, the Respondent alleges that said arbitration proceeding is not relevant for the case at hand, notably because the applicable treaties are different.86 The Tribunal addresses the Parties’ respective positions on this issue below.87
91.
On 3 October 2016, TECO initiated a new ICSID arbitration concerning damages that were not granted by the Teco I tribunal ("Teco IT"). The Teco II tribunal rendered its award on 13 May 2020.88 While the Claimant brought this fact to the Tribunal’s attention, neither party requested the opportunity to make comments on this award. The Tribunal has reviewed this award but has not found it helpful for its analysis.

V. Jurisdiction and Admissibility

A. The Respondent’s position

92.
The Respondent objects to the Tribunal’s jurisdiction, and to the admissibility of the claims, on the following grounds: the claims are barred by the principle of res judicata; in the alternative, they are precluded by the doctrine of concentration of arguments; in the further alternative, the Tribunal has no jurisdiction because the Claimant has violated the Treaty’s fork-in-the-road clause and the claims are precluded by Article 26 of the ICSID Convention; in the further alternative, the claims amount to a harassment of the Respondent and an abuse of right; in the further alternative, the Claimant’s actions violate Article 53(2) of the ICSID Convention and, as a result, Iberdrola’s claims are excluded from this Tribunal’s jurisdiction; finally and also in the alternative, were the Tribunal to consider that Iberdrola can reformulate its claims under the Treaty, these claims would likewise be beyond the Tribunal's jurisdiction as they relate exclusively to Guatemalan law.
93.
The Tribunal will start its analysis with the main objections, i.e. res judicata. It will review the other objections if necessary or appropriate depending on the outcome of its examination of res judicata.

1. Res judicata

94.
The Respondent contends that the principle of res judicata, which is a "well-established and generally recognized principle of law",89 bars the Claimant from restating claims that have already been decided. The Iberdrola I tribunal already decided the claims submitted to this Tribunal, and the Claimant is precluded from bringing them for a second time. The Respondent raises res judicata as its primary objection and appears to argue that it precludes the Tribunal's jurisdiction.
95.
The Respondent argues that (a) if there is triple identity, decisions on jurisdiction have res judicata effect, (b) the Iberdrola I tribunal dismissed the claims that have been submitted here, and (c) the res judicata principle prevents the Claimant from resubmitting these claims.

a. The principle of res judicata applies to decisions on jurisdiction

96.
Relying on jurisprudence from the ICJ and other international tribunals, the Respondent submits that "[t]he principle of res judicata seeks to prevent a decision by a court or tribunal - which must be final with regard to the parties - from being reopened in new judicial or arbitral proceedings."90 This principle applies both to arbitral awards on the merits of the dispute and to decisions and awards on jurisdictional objections.91 For instance, the ICJ stated in the Genocide Case that "once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case."92 ICSID tribunals have even found that decisions prior to an award also have res judicata effect when part of the same arbitral proceedings.93
97.
To establish whether res judicata is met, international courts and tribunals have consistently applied the triple identity test, which requires (i) identity of parties (persona), (ii) identity of object (petitum) and (iii) identity of cause of action or legal grounds (causa petendi).94 The Respondent denies that the res judicata effect of an award is limited to what the tribunal decided "expressly or by necessary implication."95 The formalistic and legalistic interpretation of res judicata advanced by the Claimant has been widely reassessed by international jurisprudence and doctrine in favor of a flexible and pragmatic approach.96

b. The Iberdrola I tribunal dismissed the claims with res judicata effect

98.
The Respondent emphasizes that the Iberdrola I Award dismissed the same claims submitted in this arbitration with res judicata effect.
99.
First, the Respondent contends that the triple identity test is met here:

i. It is undisputed that the parties in this case and in Iberdrola I are the same.97

ii. In both cases, the Claimant has requested the tribunal to hold that Guatemala had violated Article 3 of the Treaty and order the State to pay compensation.98 There is thus identity of petitum.

iii. Finally, there is identity of factual and legal bases, and thus identity of cause of action.99 Both cases rely on the same set of facts related to the Tariff-Setting Process and, in particular, to CNEE Resolutions 144-2008, 145-2008 and 146-2008. Indeed, the Claimant has accepted that both cases are based on the same facts. Crucially, in Iberdrola I the Claimant invoked the same Treaty breaches that it is invoking now and pleaded first before the tribunal and then before the ad hoc committee that its claims were made under international law.100

100.
For the Respondent, the fact that the Iberdrola I tribunal found that the claims were not claims that could be advanced under the Treaty is irrelevant to determining whether there is an identity of cause of action. The decisive factor is whether the claims that the Claimant submitted in the first proceedings and in the present one are identical. The Claimant has expressly acknowledged that it initiated Iberdrola I "to have its international law claims heard and determined,"101 and there is no doubt that it invoked the Treaty to support its prayer for relief there, as it is doing now. The requirement of identity of cause of action bars the Claimant from raising the same claim a second time "in a new light."102 The Claimant’s reliance on the contract/treaty claim distinction is irrelevant, as Iberdrola never attempted to bring a contract (or national law) claim in Iberdrola I.
101.
In the alternative, what matters is whether the claims in Iberdrola I were based on the facts alleged in this second arbitration, which is undisputed.103
102.
Second, contrary to the Claimant’s arguments, the Iberdrola I Award was not limited to finding that the claims submitted by Iberdrola were national law claims because of the "form" in which they were formulated, nor did the tribunal fail to analyze "whether the facts were an eligible basis for the dispute under the Treaty or under international law."104 The Iberdrola I tribunal did analyze the facts alleged by the Claimant and dismissed the claims.105 It correctly found that the facts alleged, if proven, could not amount to a violation of the Treaty, but at best, to a breach of domestic law that was outside the jurisdiction granted by the Treaty. To reach this conclusion, the Tribunal took into account all of the Parties’ arguments and evidence, including all factual and legal issues relevant to this matter.106 More specifically, the Iberdrola I tribunal found that the CNEE and the Guatemalan courts, acting within their authority under local law, had interpreted that law in a particular way, and that it thus had no jurisdiction to judge this interpretation under international law, as this would require it to act as a court of appeal. As a result, the tribunal found that the facts invoked by Iberdrola could only give rise to a denial of justice claim.107
103.
The Respondent denies that the res judicata effect of the Iberdrola I Award is limited to what the tribunal decided "expressly or by necessary implication." However, even if the Tribunal were to adopt this restrictive and formalistic position, Iberdrola's claims in this arbitration would still be res judicata. To determine the scope of res judicata, it is necessary to take into account the reasoning behind the operative part of the award and the parties' pleadings throughout the course of the proceeding.108 In this respect, Guatemala stresses that:

i. The parties to Iberdrola I thoroughly debated whether or not the facts invoked by the Claimant constituted a dispute under the Treaty. The discussion was not about the "form" in which the claims had been submitted. Indeed, the tribunal requested the parties to indicate in their post-hearing briefs whether the facts that they considered proved had produced consequences under the BIT or under international law. The Claimant made colossal efforts to show this.109

ii. The Iberdrola I tribunal analyzed whether the facts alleged by the Claimant, if proven, could amount to a violation of the Treaty.110 After assessing these facts, as set out in the parties' pleadings and evidence, the tribunal found that "the foundation for Iberdrola's claim" was a dispute under Guatemalan law, and that Iberdrola had failed to show which "acts of authority" by Guatemala could constitute violations of the Treaty.111

iii. The Iberdrola I tribunal also analyzed Iberdrola's legal arguments and found that there was no connection between the facts alleged and the standards invoked. Nor were there any acts of imperium which under international law may constitute violations of treaty rights.112

104.
In any event, the parties' positions summarized in the Iberdrola I Award show that the tribunal did take into consideration the same facts and arguments that the Claimant now seeks to submit before this Tribunal.113
105.
The Respondent further argues that the annulment decision (as well as the Claimant's arguments during the annulment proceedings) corroborates the res judicata effect of the Iberdrola I Award. During the annulment proceedings, the Claimant focused its efforts on demonstrating that the facts set forth in Iberdrola I involved a dispute under international law. Specifically, the Claimant devoted an entire section of its annulment memorial to the reasons why the facts it had invoked gave rise to a dispute under the Treaty;114 it identified 16 facts that were said to have led to a breach of the obligation to afford FET;115 it submitted two appendices to support its arguments, one explaining the connection between the alleged facts and the violation of the Treaty standards, and another with its responses to Guatemala’s jurisdictional objections; it also filed an expert opinion by Prof. Rudolph Dolzer on the international nature of its claims.
106.
The ad hoc committee concluded that the tribunal had acted within its authority by legally characterizing the claims of the Claimant as a dispute arising under domestic law, and that it was thus inappropriate to annul the Iberdrola I Award. The ad hoc Committee’s decision thus further "affirmed the [final and unappealable nature] of this award pursuant to the provisions of the ICSID Convention."116
107.
The very fact that the Claimant applied for annulment of the Iberdrola I award demonstrates that the Claimant is well aware of the res judicata effect of that award, or else "it would not have felt the need to apply for the annulment."117

c. The res judicata principle prevents the Claimant from resubmitting its claims

108.
For the Respondent, the res judicata principle prevents the Claimant from resubmitting its claims. The Iberdrola I tribunal has already ruled on "whether, prima facie, the fundamental basis for Iberdrola’s claim in this case is the Treaty", which Iberdrola argues is this Tribunal’s task.118 According to the Respondent, the Claimant seeks to "have this Tribunal review and overturn the decision in the Iberdrola I Award - this time accepting the position that the Claimant advanced throughout the entire course of the prior arbitral proceeding. Consequently, for all practical purposes, this Tribunal would be acting as an appellate tribunal, in clear violation of the cardinal principle of res judicata and the provisions of the ICSID Convention."119
109.
Contrary to the Claimant’s suggestion, the res judicata principle precludes the Claimant from refiling its claims after those claims were rejected on jurisdictional grounds. The Iberdrola I decision is final and cannot be remedied in a subsequent proceeding. Whether the Claimant (or, for the sake of argument, this Tribunal) disagrees with the Iberdrola I tribunal’s reasoning is irrelevant: the fact is that a duly constituted tribunal with the authority to reach a finding on the Claimant’s claims has rendered its decision.
110.
If the Tribunal were to accept Iberdrola's position, it would set a dangerous precedent, as it would allow investors to question decisions on lack of jurisdiction. For instance, if a tribunal decided that a particular investment was not protected under the relevant treaty, the claimant could (erroneously) call for a new tribunal under the treaty in the hopes that that tribunal would reach a different outcome on its jurisdiction. This would jeopardize the finality of arbitral awards and the competence of international courts to rule on their jurisdiction.120
111.
In any event, even if the Tribunal accepted the Claimant's views, the defects in the Claimant's legal strategy cannot be corrected in this arbitration.121 For policy reasons, the Claimant may not cure its claims by reformulating them in another forum. This would be contrary to principles of finality, efficiency, justice, legality, loyalty, procedural diligence, equality of arms, procedural economy and good public management, which have been recognized by national courts as well as international tribunals.122 Citing Apotex III, the Respondent argues that "were it so easy to side-step the application of res judicata, the doctrine would be largely meaningless under international law [...]. The costs and time required for investor-state arbitrations, already not inconsiderable, would be multiplied several times over if unsuccessful claimants could persuade later tribunals to restrict the effect of earlier awards by simply reformulating their claims and arguments. As already described, there is a strong interest, both public and private, in bringing an end to a dispute by one final and binding arbitration award."123
112.
Regardless of policy, the Respondent submits that the way in which the Claimant formulated its claims in Iberdrola I is not a jurisdictional defect that can be cured by bringing newly formulated claims. The Respondent accepts that certain jurisdictional defects can be cured, but they refer only to procedural requirements to submit a dispute to arbitration that would otherwise render the claim premature (such as the cooling-off period or waiver requirements). Neither Waste Management II, nor Mobil v. Canada II, nor Nicaragua v. Colombia II support the proposition that a claimant might correct a defect related to the way in which its claims have been formulated. To the contrary, these cases confirm that only a premature claim can be resubmitted. That is not the case here: claims that have been badly formulated are not premature; nothing prevents the claimant from submitting them correctly from the outset.124

d. Relevance and content of Swiss international arbitration law

(i) Should the Tribunal consider Swiss international arbitration law on res judicata in addition to international law?

113.
The Respondent submits that Swiss law should be taken into consideration by the Tribunal, in addition to the applicable international law. The Respondent acknowledges that "investment treaty tribunals seated in Switzerland are not automatically bound to apply the law of their seat to res judicata objections"; rather, the applicable law (including to the issue of res judicata) is defined at Article 11(3) of the Treaty, which points to the terms of the Treaty, the law of the host State and international law.125 That said, the Respondent contends that "the law of the seat should be taken into consideration to determine whether or not a future award could be set aside in the jurisdiction serving as the seat of the arbitration proceedings as part of the tribunal's duty to make every effort to render an award enforceable at law".126
114.
The seat of the arbitration being Geneva (Switzerland), the Tribunal should take into consideration Swiss international arbitration law when assessing the Respondent's res judicata objection.127 In particular, pursuant to Article 176 of the Swiss Private International Law Act (the "PILA"), Chapter 12 of the PILA would govern any annulment proceedings in Switzerland.

(ii) What is the content of Swiss international arbitration law about res judicata of negative jurisdictional awards?

115.
The Respondent makes seven main points with respect to the content of Swiss international arbitration law on the notion of res judicata and its application to negative jurisdictional awards.
116.
First, the Respondent submits that, under Swiss law, negative awards on jurisdiction are final awards, and as such carry res judicata effects.128 Likewise, awards (including ICSID awards) and foreign judgments have res judicata effects, to the extent that they may be recognized and enforced in Switzerland.129 As "[i]t is beyond any doubt that ICSID awards can be recognized and enforced in Switzerland, a Contracting State to the ICSID Convention", the Respondent argues that the "the Iberdrola I ICSID award which declined jurisdiction over Claimant’s claim for a breach of Article III of the Treaty produces res judicata effects in Switzerland."130
117.
Second, according to the Respondent, under Swiss law the doctrine of res judicata applies where the parties to the dispute are the same and the subject matter of the dispute is the same, which in turn depends on whether the dispute is based on the same set of facts.131 These requirements are met here: the parties, the facts and the relief sought - a declaration that Guatemala breached Article 3 of the Treaty - are identical in both arbitration proceedings.132
118.
Third, the Respondent submits that, under Swiss law, a negative award on jurisdiction carries both negative and positive res judicata effects. The negative effect of res judicata "entails that the same claim cannot be brought again in other proceedings", while the positive effect of res judicata "entails that, if an adjudicator has to decide a preliminary issue that has already been finally decided in the dispositive part of an earlier award, that adjudicator is bound by the earlier award, and must implement it in its own decision."133 The consequences of these principles for this case are two-fold: the Claimant cannot bring its claim for a breach of Article 3 of the Treaty again, and this Tribunal is bound by the Iberdrola I award’s decision to decline jurisdiction over the Claimant’s claims for a breach of Article 3 of the Treaty.134
119.
Fourth, the Respondent contends that, "under Swiss law, the res judicata effect of an arbitral award attaches to the dispositive part of said award",135 but does " does not extend to the entire award, and does not extend to the reasons of a tribunal's decision".136 The Iberdrola I tribunal found that it had no ratione materiae jurisdiction over the Claimant's claims.137 This decision carries res judicata effects, irrespective of the reasons underlying the Tribunal's decision.138 Accordingly, "[e]ven if the Iberdrola I tribunal's reasoning that Claimant's claims are domestic claims were to be considered incorrect by this Tribunal (quod non), the Iberdrola I tribunal's decision that Claimant's claims were ratione materiae outside of the scope of Article 11 of the Treaty retains its res judicata effects."139
120.
Fifth, the Respondent contends that, "under Swiss law, a party may not bring a new action with respect to the same dispute by relying on facts that it did not invoke, but could and should have invoked, during the first proceedings"; "[a] party can only bring a new action with respect to new facts, i.e., facts that have arisen after the moment up until which that party could have validly invoked new facts in the first proceedings".140 In other words, if the new claim arises out of new facts then there is no identity of subject matter under Swiss law.141 The Respondent notes in this regard that the Claimant's claims in this arbitration do not result from new facts.142
121.
Sixth, the Respondent contends that, "under Swiss law, a subsequent award will be annulled if rendered in violation of the res judicata effect of a prior award,"143 because violations of res judicata are considered to be contrary to procedural public policy, which is a ground for annulment under Article 190(e) PILA. As a result, if the Tribunal were to allow the Claimant's case to proceed, the award would be annulled under Article 190 PILA for being contrary to procedural public policy.144
122.
Seventh, the Respondent argues that, as under international law, under Swiss law the Claimant’s resubmission of its claim constitutes an abuse of process which would be contrary to Article 2.2 of the Swiss Civil Code.145

2. Concentration of claims

123.
Even if the Tribunal were to find that the Claimant can reformulate its treaty claims to evade the res judicata principle, the Respondent submits that these claims are still precluded and outside of the Tribunal’s jurisdiction by application of the concentration of claims principle. Pursuant to this principle, a claimant is required to submit all available claims related to a particular dispute when initiating judicial or arbitral proceedings. If it fails to do so, it is barred from raising its claim in subsequent proceedings.146 This principle seeks to protect the general public interest as well as the interest of the parties, in particular, the respondent’s interest of not being harassed by successive claims when only one would suffice.147
124.
According to the Respondent, the concentration of claims principle has been recognized by both domestic courts and international tribunals. The Respondent relies on norms and case law of the French courts (RLA-34 and RLA-35), the English courts in Henderson v. Henderson (RLA-36), Guatemalan procedural norms and jurisprudence (RLA-38), international courts and commissions such as in the Delgado (RLA-39) and the Machado cases (RLA-40), and investment tribunals, for instance, in RSM v. Granada (RLA-41) and Petrobart v. Kyrgyz Republic (DL-3/CLA-3).
125.
In response to the Claimant’s arguments, the Respondent maintains that the principle of concentration of arguments:

i. Is a general principle of law in the terms of Article 38.1 of the ICJ Statute. The references to national law have been provided by way of example. The Respondent cites more examples to support this assertion.148

ii. Has been applied by many international courts and tribunals149, as international law condemns the practice of "claim-splitting".

iii. Is consistent with the doctrine of "exhaustion of treaty process" (in French, "épuisement des recours prévus dans le traité") recognized by the ICJ. Like the res judicata and the principle of ne bis in idem, this doctrine seeks to put an end to disputes. Citing the Nicaragua v. Colombia case, the Respondent argues that, "[u]nder this principle, 'the renewed presentation of a claim previously examined by the Court may be considered inadmissible if that claim relies on the same treaty process as the basis of jurisdiction of the Court.'"150

iv. Is supported by international legal authorities.151

3. Fork in the road

126.
In the alternative, the Respondent contends that the fork-in-the-road clause of Article 11(2) of the Treaty bars the Claimant from raising anew claims that have already been submitted to the Guatemalan courts and the Iberdrola I tribunal.152
127.
The Respondent disputes the Claimant's contention that the Respondent's fork-in-the-road objection fails because of its alternative nature. The Respondent agrees that if res judicata and fork in the road were equivalent concepts, as construed by the Claimant, a fork-in-the-road objection could not be alternative. However, these concepts are "neither equivalent nor the ones advanced by Claimant."153 Accordingly, if the Tribunal were to find that Iberdrola's treaty claims were not decided with res judicata effect, they would be barred under Article 11(2) of the Treaty.154
128.
In essence, the Respondent contends that Article 11(2) of the Treaty is a fork-in-the-road clause (a), which has been triggered twice by the Claimant (b), and even if the Tribunal were to consider otherwise, Article 26 of the ICSID Convention precludes the Claimant from bringing this UNCITRAL proceeding arbitration (c).

a. Article 11(2) is a fork-in-the-road clause

129.
Article 11(2) of the Treaty is a fork-in-the-road clause, so says the Respondent, because it expressly establishes that an investor may have recourse only to one forum for resolving a dispute with the host State.
130.
The Respondent emphasizes that Article 11(2) must be interpreted pursuant to its wording, as established in Article 31 of the Vienna Convention on the Law of Treaties ("VCLT") and confirmed in H&H.155 Article 11(2) provides for three alternative and exclusive mechanisms for dispute resolution. The use of the expression "at the choice of the investor" and of the conjunction "or" indicate that the three mechanisms are alternative, so that the choice of one of these fora is irrevocable.156
131.
This is consistent with the purpose of fork-in-the-road provisions. Relying on Prof. Zachary Douglas's writings, the Respondent contends that "[t]he rationale underpinning the 'fork in the road' provision in investment treaties is clearly the avoidance of multiple proceedings in multiple fora in relation to the same investment dispute. In more colloquial terms, it is designed to prevent the investor having several bites at the cherry."157
132.
According to the Respondent, the essential criterion for the application of the fork-in-the-road clause under the Treaty is the submission of the "same dispute" to more than one forum. The dispute is the same if "the respective claims share the same fundamental basis;"158 it does not need to meet the triple identity test. Relying on Pantechniki v. Albania, the Respondent argues that it suffices for the disputes to share the same "normative source".159 The test is whether, if the Claimants' case had been accepted in domestic proceedings, "it would grant the Claimant exactly what it is seeking" in these proceedings, and on the same "fundamental basis".160
133.
This test has been applied by several investment tribunals, such as H&H v. Egypt, Supervisión y Control v. Costa Rica, Chevron v. Ecuador and Salini Impregilo v. Argentina.161 A similar test has been developed by certain commentators, who argue that disputes should be "substantially equivalent" for the fork-in-the-road clause to apply.162
134.
Nor is it necessary, according to the Respondent, for the parties to be identical for the fork-in-the-road clause to be triggered. The fork-in-the-road clause will be triggered if domestic proceedings have been initiated by the local company, and an investment arbitration is later initiated by the investor or controlling shareholder, or by other companies in the same corporate chain or in "privity of interest" with the claimant.163 Nor is there any authority to support the contention that the State per se needs to be a party to the domestic proceedings.164

b. The fork-in-the-road clause in Article 11(2) has been triggered twice

135.
On this basis, the Respondent submits that the fork-in-the-road clause in Article 11(2) of the BIT has been triggered twice. It was first triggered by EEGSA’s domestic amparo proceedings against the CNEE. Those proceedings had the same fundamental basis and factual matrix. Had Iberdrola prevailed in the domestic proceedings, it "would have been granted exactly what it is sought before [this] Tribunal."165 As to the parties to those disputes, the Respondent argues that it suffices that Iberdrola exercised de facto control over DECA II and thereby EEGSA, and was in any event in privity of interest with EEGSA,166 and that a State agency (CNEE) was a party.167
136.
Even if the Tribunal were to find that the local proceedings did not trigger the fork-in-the-road clause, the "exact same dispute", between the same parties, arising from the same factual matrix, and seeking the same relief, has already been submitted to an ICSID tribunal.168 The Respondent disputes that the Claimant can avoid the operation of the fork-in-the-road clause by relying on the Iberdrola I Award. The application of the fork in the road does not depend on the finding of another court or tribunal; rather, it depends on the claims submitted. It is therefore irrelevant that the Iberdrola I tribunal decided that the claims were not treaty claims.169 The Claimant’s interpretation would run contrary to the concept of fork in the road. In reliance on Ekosol, the Respondent argues that "the very notion of a 'fork’ in a road [...] implies the choice between two different paths, rather than repeat travels down the identical path."170 That interpretation also runs in conflict with the purpose of fork-in-the-road provisions, which is to avoid the duplication of proceedings.171

c. Article 26 of the ICSID Convention bars the Claimant initiating these UNCITRAL proceedings

137.
Even if Article 11(2) of the Treaty were not a fork-in-the-road provision, the Respondent argues that Article 26 of the ICSID Convention, by virtue of which consent to ICSID arbitration excludes other remedies, precludes Iberdrola from bringing these proceedings.
138.
According to the Respondent, this means that by consenting to ICSID arbitration, the parties waive their right to any other remedy, unless they agree otherwise, which they have not done in the present case.172
139.
As noted by Prof. Schreuer, the exclusivity rule enshrined in Article 26 "operates from the moment of valid consent."173 In the ICSID system, this occurs when the investor submits a request for arbitration to the Centre. Here, the Claimant consented to ICSID arbitration when it submitted its request for arbitration to ICSID on 17 April 2009 in the Iberdrola I proceedings. From then onwards, the Claimant could not withdraw its consent unilaterally.
140.
The Claimant cannot now argue that, because its claims were not decided on the merits, this consent can somehow be undone. By consenting to ICSID arbitration, the Claimant consented to a tribunal determining its competence over the dispute and the merits of the claims. The Iberdrola I tribunal ruled on the dispute by dismissing the Claimant’s denial of justice claims on the merits and declining jurisdiction over its remaining claims.
141.
Because it consented to submit the dispute to ICSID, the Claimant waived its right to any other remedy available under the Treaty, including UNCITRAL arbitration. Citing Prof. Schreuer and Pey Casado v. Chile, the Respondent submits that, once there is a valid consent given to ICSID arbitration, any other forum should decline jurisdiction unless a contrary intention of the parties can be established.174
142.
For the Respondent, the Iberdrola I tribunal's characterization is immaterial to the application of the exclusivity rule. What matters is "whether the arbitration submitted by Claimant to both ICSID and UNCITRAL arbitration is the same."175 Relying on Tokios Tokeles v. Ukraine and Quiborax v. Bolivia, the Respondent submits that Article 26 applies not only to identical claims, but also to claims related to the same subject matter.176 Here, the claims in both arbitrations relate to the same subject matter, as "[o]n the basis of these same facts, Claimant, in both proceedings, sought a declaration of violation of Article 3 of the Treaty."177
143.
Finally, Guatemala clarifies that its objection does not mean that Article 26 governs in these proceedings or binds the Tribunal. What is binding is the Claimant's waiver that is enforceable by any adjudicator with a dispute already submitted to ICSID arbitration.178
144.
For these reasons, the Respondent requests the Tribunal to enforce the Claimant's waiver of UNCITRAL arbitration, and to decline jurisdiction over the claims.179

4. Abuse of process

145.
Should the Tribunal dismiss the Respondent's previous objections, the Respondent argues that the doctrine of abuse of process or "abuso del derecho" (abuse of right), as the Respondent refers to it in Spanish, would preclude the Claimant from raising its claims again, which would be inadmissible.180
146.
Citing Phoenix Action and Orascom, among other cases, the Respondent argues that the principle of good faith prevents investors from abusing the rights granted under international investment treaties and the prohibition of abuse of right bars the exercise of a right, whether substantive or procedural, for purposes other than those for which it was established.181 It further specifies that the prohibition of abuse of process sanctions the submission of multiple claims, even where the triple identity test is not strictly met, with the inadmissibility of the claims.182 The Respondent also points out that the abuse of process theory applies irrespective of whether the proceedings are used for an illicit purpose.183
147.
To resolve any disputes with the host State, the Treaty grants investors recourse to (i) a domestic court, (ii) an ad hoc tribunal established in accordance with the UNCITRAL Rules 1976, or (iii) an arbitral tribunal constituted under the ICSID Convention. Here, however, the Claimant abused its right of recourse to any of these fora by initiating multiple proceedings against Guatemala on the basis of the Tariff-Setting Process.184
148.
The Respondent contends that "there is no question that the restatement of Iberdrola’s claims under the Treaty 'entail[s] the exercise of rights for purposes that are alien to those for which these rights were established.’"185 Accordingly, the Claimant’s Notice of Arbitration is abusive and must be rejected.186

5. Article 53 of the ICSID Convention

149.
Even if all of the previous objections were to fail, the Respondent contends that the claims would still be excluded from the Tribunal’s jurisdiction because they violate Article 53 of the ICSID Convention.187 This provision stipulates that "[t]he award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention." For the Respondent, this means that "the forms of recourse established in the ICSID Convention are exclusive of each other [and] do not include the possibility of appealing the factual or legal findings of an ICSID tribunal."188
150.
The Respondent contends that the Claimant has exhausted the available remedies against the Iberdrola I Award by seeking the annulment of this award under Article 52 of the ICSID Convention.189 There is no dispute that the Iberdrola I tribunal was competent to determine whether the claims fell under the Treaty. After the Iberdrola I Award, the Claimant availed itself of the recourse established in the ICSID Convention and unsuccessfully applied for its annulment. Now it requests this Tribunal to make a finding that is contrary to that of the Iberdrola I tribunal. Relying on RSM v. Grenada, the Respondent submits that reopening the findings of an ICSID tribunal (as the Claimant attempts to do in this arbitration) would breach Article 53 of the ICSID Convention, with the result that the Tribunal would lack jurisdiction.190
151.
For the Respondent, the fact that this is an UNCITRAL arbitration is no excuse for the Claimant to violate the ICSID Convention. The contrary solution would affect the integrity of the investment dispute settlement system.191

6. Jurisdiction ratione materiae

152.
The Respondent submits that, in the unlikely event that Iberdrola were allowed to reformulate its claims, the latter are likewise outside of the Tribunal's jurisdiction as they relate exclusively to Guatemalan law.192 Even if the Tribunal were to disagree with this characterization, the claims have in any event already been resolved by the Guatemalan courts, and are thus not within the Tribunal's jurisdiction.

a. The claims relate exclusively to questions of Guatemalan law

153.
The Respondent argues that, under Article 11(1) of the Treaty, Guatemala's consent is limited to disputes concerning matters governed by the Treaty. Disputes about issues of Guatemalan law are thus outside this Tribunal's jurisdiction.
154.
Jurisdiction must be proven applying the pro tem test articulated by Judge Higgins in the Oil Platforms case. Specifically, so says Guatemala, "the Claimant must demonstrate that the alleged facts, if established, may entail a violation of 'matters governed' by the Treaty."193 This is not the case here, as the Claimant's claims are grounded on domestic law, particularly on "(i) the binding or nonbinding nature of the Expert Commission's statement, (ii) the authority of the [CNEE] to approve the independent study conducted by Sigla, and (iii) the authority of the [CNEE] to adopt the tariffs based upon said report."194 Labelling the actions of the CNEE as violations of international law195 is insufficient to establish jurisdiction. If the Tribunal were to accept jurisdiction, "the Parties would become mired in a purely regulatory debate revolving around the powers of the regulatory entity and the distributor in the Tariff-Setting Process."196 For the Respondent, the Claimant has provided no information to the contrary.197

b. The claims have already been resolved by Guatemalan courts

155.
The Respondent further asserts that, even if the Tribunal were to hold that the claims relate to "matters governed" by the Treaty, it could not review the decisions of the Guatemalan Constitutional Court which resolved the dispute over the Tariff Setting Process.198 Citing the Serbian Loan decision, the Respondent submits that "an international tribunal cannot act as an appellate court on matters of domestic law."199
156.
In its Notice of Arbitration, the Claimant acknowledged that its claims were finally resolved by the Constitutional Court of Guatemala on 18 November 2009 and 24 February 2010.200 As the dispute has already been resolved by domestic courts, so argues the Respondent, only a denial of justice claim could raise it to the international level.201 Yet, the Iberdrola I tribunal dismissed the denial of justice claim on its merits. The Claimant has accepted this and has expressly excluded its previous denial of justice claim from this arbitration. As a result, nothing in the Claimant’s Notice of Arbitration allows its exclusively national dispute to be raised to the international level.202

B. The Claimant’s position

157.
The Claimant submits that this Tribunal has jurisdiction over its claims, all of which are admissible, for the following reasons: (1) the claims are not barred by the principle of res judicata; (2) the doctrine of concentration of arguments is inapplicable; (3) the Treaty does not contain a fork-in-the-road clause, and even if it did, it has not been triggered, nor are the proceedings precluded by Article 26 of the ICSID Convention; (4) there has been no abuse of process; (5) the claims do not violate Article 53 of the ICSID Convention; and (6) they are treaty claims not premised on national law, with the result that the Tribunal has the required jurisdiction ratione materiae.

1. Res judicata

158.
According to the Claimant, the Respondent has failed properly to establish the content of the res judicata principle in international law. Properly defined, the res judicata principle does not prevent the Tribunal’s rendering a decision on the international law claims in this case. More specifically, the Claimant submits that (a) for res judicata to apply, it is not sufficient for the triple identity test to be met; it is also necessary to determine what has been "definitively settled"; (b) decisions on jurisdiction do not have preclusive effects over merits issues; and (c) applying these principles, res judicata does not bar the present claims. Finally, res judicata does not preclude jurisdiction, but goes to the admissibility of the claims.

a. The content of the res judicata principle in international law

159.
The Claimant accepts that res judicata is a principle of international law as well as a general principle of law in the meaning of Article 38(1)(c) of the ICJ Statute. According to this principle, "the issues that have been determined" are binding on the parties and final.203 The Claimant further accepts that "for the principle of res judicata to apply the international proceedings in question must involve the same parties, the same object, and the same legal ground, i.e. meet the triple identity test."204 Yet while the triple identity test is a necessary condition, it is also necessary to determine what issues have actually been "definitively settled" by the previous decision.205 The Claimant cites two recent decisions of the ICJ on this matter:

It is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed. The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same Parties; it must determine whether and to what extent the first claim has already been definitively settled.206

[F]or res judicata to apply in a given case, the Court 'must determine whether and to what extent the first claim has already been definitively settled' [...] for '[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it'.207

160.
In this respect, the Claimant's expert, Prof. Michael Reisman, opines that "[t]he construction of res judicata in the field of public international law thus is confined to the preclusion of claims that not only have been raised but have been decided with finality in the earlier judgment".208 As a result, "the res judicata objection requires the tribunal to review the prior award to determine whether or not what is now being claimed is what was definitely decided by the prior tribunal."209
161.
The Claimant further asserts in connection with ascertaining the scope of the res judicata formed by a prior award or judgment that the ICJ held that, although the decision "is contained in the operative clause of the judgment", "it may be necessary to determine the meaning of the operative clause by reference to the reasoning set out in the judgment in question".210 This being so, the goal remains to identify what was decided and "the fact that a point was argued by the Parties does not necessarily mean that it was definitively decided by the Court."211
162.
The Claimant opposes the Respondent’s suggestion that there is a contemporary trend in international arbitration towards an autonomous and flexible approach to res judicata which does not reflect current public international law.212 According to the Claimant, the Respondent’s position is flawed because it relies on national laws and disregards the relevant rules of international law213 and it is an academic proposal or a consideration de lege ferenda often discussed in the context of international commercial arbitration and not of investment arbitration.214 Further, the sources cited by the Respondent suggest that claims brought before an international tribunal, and rejected at the jurisdictional stage do not entail res judicata effects, whatever the submissions made before the tribunal declining jurisdiction.215
163.
This being so, "[a]s a party that is seeking to obtain a decision on the merits of its treaty claims for the first time,"216 the Claimant does not favor a formalistic approach to res judicata, and agrees with the Respondent that "[i]nstead of rigid identity tests, an overall assessment of the parties involved, the legal grounds invoked, the objects pursued and the underlying facts will be necessary in order to avoid a multiplication of proceedings with its inherent danger of conflicting outcomes."217 Hence, the Tribunal must apply the three elements of the triple identity test, i.e. personae, petitum, and causa petendi. In other words, res judicata is not only dependent on the parties and the facts, it is also limited by the relief sought and the legal basis i.e., the causa petendi.218 In addition, to apply the triple identity test, the Tribunal must determine "what has been decided in the first case."219

b. Decisions on jurisdiction have no preclusive effects over merits issues

164.
The Claimant submits that "[w]hen declining jurisdiction an international tribunal exercises its compétence de la compétence powers exclusively over the claims submitted to it."220 The power to identify the nature of the dispute lies within such compétence de la compétence.221 In characterizing the claims, the international tribunal will take into account the position of both parties and pay particular attention to the formulation of the dispute by the applicant.222 In the end, however, it is for the international tribunal itself "to determine on an objective basis the subject matter of the dispute between the parties, that is, to 'isolate the real issue in the case and to identify the object of the claim."223
165.
Further, Iberdrola submits that decisions on jurisdiction have no preclusive effects over merits issues, as the ICJ held in South West Africa:

The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection [...] It may occur that a judgment on a preliminary objection touches on a point of merits, but this it can do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. Any finding on the point of merits therefore, ranks simply as part of the motivation of the decision on the preliminary objection, and not as the object of that decision. It cannot rank as a final decision on the point of merits involved.224

166.
That being said, the Claimant acknowledges that, in principle, a decision on jurisdiction has res judicata effect as regards the matters that it definitively decides. However, relying on Waste Management II, the Claimant submits that no res judicata bar applies when "the jurisdictional barrier or flaw can be corrected."225 The same rule applies to decisions on admissibility.226
167.
According to the Claimant, the Respondent has failed to address the effects of decisions declining jurisdiction and rather adopts a simplistic approach that relies on virtually no sources of international law, or takes them out of context. In particular,227 it has quoted Bin Cheng out of context, when that author’s position is that no one should be proceeded against twice for the same cause, and that the "negative effect of res judicata [...] only attaches, however, to a final judgment of a competent tribunal. Where a tribunal has merely declared itself to have no jurisdiction to entertain a suit, this does not prevent the same issue from being presented before another tribunal which may be competent."228 Similarly, Guatemala quotes Hober out of context. While Hober does state that "[j]urisdictional decisions based on curable procedural requirements do not constitute res judicata", he also writes that res judicata does not apply to awards by which an ICSID tribunal decides that the dispute is not within its competence or the jurisdiction of ICSID. Consequently, if an ICSID tribunal declines jurisdiction, a claimant may start proceedings in another forum.229 Furthermore, the Respondent’s assertion that the ICJ decision on Nicaragua v. Colombia II "should be awarded scant persuasive value" in light of the distribution of votes and criticism from the dissenting judges ignores that this was not an isolated decision. In addition, the admissibility issue was decided by 15 votes to 1.230

c. Properly defined, the res judicata principle does not prevent a decision on the international law claims

168.
Building on the elements set out in (a) and (b) above, the Claimant submits, essentially for three reasons, that the principle of res judicata does not preclude it from having its treaty claims decided.
169.
First, Iberdrola’s treaty claims have not been decided and, therefore, cannot fall within the scope of res judicata. Indeed, the Iberdrola I tribunal "considered that the nature of the claims submitted by Iberdrola I in that arbitration was one of Guatemalan national law."231 This is also the manner in which the annulment committee understood it.232 Accordingly, "the tribunal in Iberdrola I could have never decided upon any treaty claim whatsoever because, under its characterization, the claims before it were purely domestic claims".233
170.
In the Claimant's submission, the Respondent's argument that the Iberdrola I tribunal did rule on Iberdrola's international law claims because Iberdrola failed to establish that the facts, as alleged, could amount to international law claims, is untenable.234 The Iberdrola I tribunal accepted a jurisdictional defense and, hence, by definition, did not rule on the merits. It actually underscored that it "did not even have competence to consider the parties' allegations about the regulatory or contractual nature of the dispute, because that would be, above all, a matter relating to the merits of the dispute".235 In line with this finding, it did not mention let alone assess a single piece of evidence.236
171.
The Claimant makes the following comments on the Iberdrola I award:

i. The tribunal started by analyzing Article 11 of the BIT. It concluded that "the consent of the Republic of Guatemala to submit disputes under the Treaty to arbitration is clearly limited to those disputes concerning 'matters regulated by' the Treaty itself."237

ii. The tribunal then addressed how "the way in which the Claimant raised its claims regarding the standards of the Treaty that it considers have been violated by Guatemala." For the Claimant, this means that the tribunal was addressing how Iberdrola's claims had been formulated.238

iii. When assessing each of the claims, the tribunal concluded that Iberdrola had only presented local law claims.

iv. After this claim by claim analysis, the tribunal found that Iberdrola had only submitted claims of Guatemalan law over which it had no jurisdiction, and that, as formulated, Iberdrola's claims required a prior decision from the tribunal on claims of local law.239 However, the tribunal determined that it was not its function to act as an appellate body and review the findings of local courts.

172.
According to the Claimant, the Iberdrola I tribunal "did not conclude that the factual matrix at the origin of the dispute could not give rise to treaty claims, but that, as formulated by Iberdrola, the claims in Iberdrola I were local law claims premised on the violation of local law with respect to which the tribunal lacked jurisdiction to make a ruling."240
173.
The repeated references to the form in which the claimant had presented its claims were meant to delineate the scope of its jurisdictional decision."241 Pursuant to the rule against ultra petita decisions, the Iberdrola I tribunal could not dismiss claims that it regarded as not having been submitted.242 According to the Claimant, the tribunal did not say that the facts of the case could not give rise to treaty breaches.243
174.
Second, the Claimant contends that the triple identity test and in particular the requirement of identical causa petendi, is not met, because the claims before this Tribunal are treaty claims and thus have a different legal basis from the claims in Iberdrola I.244 In support, it relies in particular on the International Law Association’s ("ILA") Final Report on Res judicata, which emphasizes that a claim brought in the second proceedings based on a different cause of action than the one raised in the first arbitration is not barred by res judicata.245 This distinction was also noted for instance by the SGS v. Pakistan tribunal, according to which "the same set of facts can give rise to different claims grounded on differing legal orders: the municipal and the international legal orders."246 This distinction, which is "widely acknowledged as customary international law", "is also reflected in Article 3 of the Articles on Responsibility of States for Internationally Wrongful Acts."247
175.
Third, the tribunal in Iberdrola I refused to exercise jurisdiction due to the manner in which the claims were presented. Relying on its expert, Prof. August Reinisch, the Claimant submits that "by accepting a jurisdictional objection based on the national law nature of the claims that had been formulated, the Iberdrola I Award does not prevent Iberdrola from submitting its international law claims to a newly formed arbitral tribunal."248 While accepting the jurisdictional finding in respect of national law claims that cannot be revisited,249 the Claimant stresses that the jurisdictional flaw related to how the claims were formulated, "may be corrected by bringing newly formulated claims based on treaty breaches that are not premised on national law violations."250 As stated in Waste Management II, "if the jurisdictional flaw can be corrected, there is in principle no objection to the claimant State recommencing its action".251
176.
This being so, the Claimant concedes that there can be "jurisdictional barriers that cannot be removed", such as the lack of a protected investment on the critical date or a finding that the claimant was not a protected investor, for instance because it lacked the required nationality at the relevant time. However, the jurisdictional flaw found by the Iberdrola I tribunal, relating to how the claimant formulated its claims, is a curable one.252 The Claimant invokes especially Hober who explains as follows:

If an ICSID tribunal declines jurisdiction, a party may also commence proceedings in another forum for a decision on the merits, provided of course that the other forum has jurisdiction. Another situation where a decision on jurisdiction does not have res judicata effect is when jurisdiction is declined based on a so-called curable jurisdictional defect.253

177.
According to the Claimant, the Iberdrola I tribunal concluded that "the substance of [the disputed] issues and, above all, of the disputes that [Iberdrola] asks the Tribunal to rule on, refer to Guatemalan law."254 By contrast, the claims brought in this arbitration are stand-alone international law claims. Iberdrola asks the Tribunal to assess the facts exclusively in the light of international law, the fundamental basis of the claims being "Guatemala's obligations under Article 3 of the Treaty to grant fair and equitable treatment to Claimant's investments, to respect the minimum standard of treatment under international law, and not to adopt arbitrary measures. No domestic law violations are alleged in the present claims; only these facts and the treaty rules applicable to that set of facts."255
178.
The Claimant admits that there is some overlap between the two cases given that they share the same factual matrix. However, unlike the claim in Iberdrola I, the present case "does not pass by or posit a [violation of Guatemalan law] as a fundamental element or premise of its cause of action".256
179.
For these reasons, the Claimant concludes that res judicata is not dispositive of the Tribunal’s jurisdiction or of the admissibility of the claim. On the contrary, it maintains that it is entitled under international law to a decision on the merits under the Treaty.257

d. Relevance and content of Swiss international arbitration law

(i) Should the Tribunal consider Swiss international arbitration law on res judicata in addition to international law?

180.
The Claimant’s short answer to the Tribunal’s first question is as follows:

The issue of the alleged res judicata should be decided solely on the basis of international law. Swiss law is only applicable to the extent that annulment or recognition and enforcement proceedings are initiated in Switzerland. Even in that case, Swiss law would make a renvoi to the ICSID Convention and international law.258

181.
More specifically, the Claimant submits that the Respondent’s res judicata objection, including determining what the ICSID tribunal definitively decided and to what extent that tribunal’s negative jurisdictional award has preclusive effects over the Claimant’s treaty claims, must be determined in accordance with international law,259 for the following reasons:

i. The Tribunal is an international tribunal, whose constitution and jurisdiction are based on the terms of a treaty;260

ii. The agreement to arbitrate (made up of the State’s offer to arbitrate contained in the Treaty and the Claimant’s acceptance) is subject to international law;261

iii. Article 11(3) provides that the arbitration shall be governed by the Treaty’s provisions, Guatemalan law and international law, and does not refer to the law of the seat;262 and

iv. The Respondent’s admissibility objection stems from an international law instrument, namely an ICSID award, and thus is premised on alleged inadmissibility grounds pertaining to the international legal order.263

182.
That being said, the Claimant acknowledges that, in principle, international law recognizes that the seat of the arbitration (in the present case Geneva, Switzerland) has jurisdiction to prescribe rules relating to the arbitration agreement, the arbitral procedure, and the annulment/enforcement of the arbitral award, subject to any applicable international law obligations. However, the Claimant emphasizes that "[n]one of these legal rules alter the fact that this Tribunal must be regarded as a tribunal based on an international agreement and not one based on Swiss law. Accordingly, the Claimant submits that "the role of Swiss law is necessarily limited to any annulment or recognition and enforcement proceedings that any of the parties may initiate in the competent Swiss court against an award rendered by this Tribunal."264
183.
The Claimant further contends that, were the law of the seat to apply, as shown in its response to Question 2, Swiss law would lead to the same conclusion as it makes a renvoi to the applicable international treaty, i.e. the ICSID Convention.265 In any event, "the application of Swiss law could only result in limiting, but never in extending, the scope of res judicata of the Iberdrola I award as determined by international law."266

(ii) What is the content of Swiss international arbitration law about res judicata of negative jurisdictional awards?

184.
The Claimant's short answer to Question 2 is the following:

The answer to question (1) is not affirmative but even were that to be the case, the substantive result would not change as Swiss law contains a renvoi to international law. In all events, the content of Swiss international arbitration law as regards the res judicata effect of negative jurisdictional awards, set out below, leads to the same outcome.267

185.
The Claimant submits that, for the Swiss Federal Supreme Court (the "SFSC"), the assessment of the res judicata effects of previous decisions "entails considering two competing principles of Swiss public policy: the finality of decisions and access to justice".268 As such, while it must ensure the finality of decisions, the approach to res judicata must also protect Iberdrola’s right to be heard.269
186.
Hence, according to the Claimant, "Swiss law adopts a restrictive approach as opposed to broader common law principles of res judicata or a proposed transnational approach".270 The Claimant also notes that, as there is no positive rule or law or case law in Switzerland on the extent of the res judicata effect of an ICSID negative award on jurisdiction, the principles developed in the case law of the SFSC when assessing the res judicata effects of foreign awards in a non-treaty arbitration may be considered by analogy.271
187.
As to the content of Swiss international arbitration law on res judicata, the Claimant makes six main points. The Claimant argues however that "Swiss law can only limit the effect of res judicata of an ICSID award resulting from the ICSID Convention and international law", and as a result the extent of res judicata under Swiss law can only be considered in this context.272
188.
First, the Claimant submits that, "[u]nder Swiss law, a foreign decision can only have res judicata effects if it is capable of recognition in Switzerland."273 According to the Claimant, "[u]nless an international treaty provides otherwise", for a foreign decision to be capable of recognition, a Swiss court or arbitral tribunal must review the jurisdiction of the foreign court or arbitral tribunal that adopted the foreign decision in question.274 As a result, "a foreign decision on jurisdiction cannot have res judicata effect on the Swiss seated court or arbitral tribunal that will undertake this review."275 However, the Claimant points out that, "[f]or ICSID awards, this question must be assessed considering Art. 54(1) of the ICSID Convention which provides that "'[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding’ without subjecting this recognition to any condition."276 This includes decisions by arbitral tribunals declining jurisdiction, as such decisions constitute an "award" within the meaning of referred to Art. 54(1). The Claimant thus appears to be acknowledging that, given the terms of the ICSID Convention, a negative decision on jurisdiction by an ICSID tribunal is capable of recognition in Switzerland without the Swiss court or arbitral tribunal needing to confirm the jurisdiction of the foreign court or arbitral tribunal that issued the decision.
189.
Second, the Claimant submits that a foreign decision cannot have greater res judicata effects in Switzerland than it would have under the lex fori, nor greater effects than a domestic award or judgment would have in Switzerland. Unless an international agreement provides otherwise, the res judicata effect of a foreign decision is "the lowest common denominator of: (i) [t]he extent of the res judicata effect under the law of the court or tribunal that rendered the first decision, which is analysed first; and (ii) [t]he extent of the res judicata effect that Swiss law accords to domestic decisions."277 However, the Claimant contends that "the ICSID Convention must be considered an international agreement whose terms provide 'otherwise’, thereby creating an exception to the general rules on res judicata under Swiss Law."278 This is because the binding effect of an ICSID award is not governed by municipal law, but by Article 53(1) of the ICSID Convention. Accordingly, "when analyzing the res judicata effect of an award rendered under the ICSID Convention the question falls to be analyzed solely under this Convention and international law".279
190.
As discussed elsewhere in this Award, the Claimant contends that, pursuant to international law principles, "the Iberdrola I award does not have preclusive effects such as to prevent this Tribunal from hearing the present case".280
191.
Third, the Claimant submits that, "[u]nder Swiss law, res judicata attaches to a decision that finally determines a legal dispute", and thus in principle "only a judgment on the merits generates res judicata effects."281 However, the SFSC has allowed for a potential exception for decisions on the procedural admissibility of a claim, stating that they can have substantive res judicata effect "at most" with regard to the specific ground of admissibility the court decided upon."282 Despite asserting this, the Claimant notes that, according to certain commentators, the res judicata effects of "a negative jurisdictional decision rendered by a Swiss seated Tribunal may depend on the grounds on which an arbitral tribunal found it lacked jurisdiction".283 Even if this were the case, the Claimant contends that it is irrelevant here: the Iberdrola I Award determined that Iberdrola's claims required a decision on national issues law and were thus not treaty claims; consequently, "no aspect of res judicata under Swiss law prevents Iberdrola from presenting a different claim not requiring a decision on such national law issues, even if based on the same facts, if that claim gives rise to a treaty claim."284 In any event, the Claimant contends that Swiss law accepts that "a case dismissed under jurisdictional grounds in one forum may subsequently be brought in another forum."285
192.
Fourth, the Claimant submits that, "under Swiss law, res judicata only applies if there are identical claims (subject-matter scope) between identical parties (personal scope)".286 Relying on case law of the SFSC, the Claimant submits that the legal basis of the claims is necessarily a "fundamental and meaningful element" to determine whether there is identity of subject-matter scope.287 As the present claims are treaty claims, the legal basis of the claims is different and the claims are not identical.288
193.
Fifth, the Claimant notes that, under Swiss law, "only the dispositive part of a decision can ever have res judicata effects (i.e., not the reasoning)."289 However, while not binding, "the reasoning underlying a decision is relevant to determining the scope of res judicata".290 According to the Claimant, "[t]he dispositive part of the Iberdrola I award does not contain anything that could create a res judicata effect barring this Tribunal from hearing the present case."291 This Tribunal can only consider the reasoning of the Iberdrola I award when determining which claims the Iberdrola I tribunal declined jurisdiction over, and whether they are identical to the claims submitted here.292
194.
Sixth, the Claimant contends that there is no rule under Swiss law of claim preclusion or concentration of claims that would prevent the present claims being determined, and that Swiss law "accepts that a case dismissed under jurisdictional grounds in one forum may subsequently be brought in another forum."293
195.
On this basis, the Claimant concludes that even if Swiss law were to apply to this case, this would not prevent this Tribunal from hearing Iberdrola’s claims on the merits. Because the Iberdrola I tribunal did not decide that the factual matrix of that case could never give rise to a claim under the BIT, and because the claims in Iberdrola I and the present case are not identical, "the required Swiss law conditions for an application of res judicata do not exist".294 Considering the competing principles of finality of decisions and right to be heard, the Claimant argues that "the delicate balance of justice must be struck by not granting unfounded res judicata effects to a negative decision on jurisdiction that if so granted would result in denying Iberdrola from ever having a decision on the merits of its legitimate treaty claims."295

2. Concentration of claims

196.
For the Claimant, there is no rule of international law establishing the so-called "principle of concentration of claims". Despite the Respondent’s inaccurate references, international arbitral tribunals have not acknowledged the existence of such a principle. On the contrary, recent decisions confirm that no such principle exists.296 The Claimant cites in particular Asylum and Haya de la Torre;297 Caratube II ;298 and Mobil v. Canada II.299
197.
The Claimant further argues that the legal authorities relied upon by the Respondent are inapposite or taken out of context. Indeed, the references to "claim-splitting" are inapposite; the ICJ has never acknowledged the principle of concentration of arguments as an international law rule. The fact that it did not apply it in the Nicaragua v. Colombia case and in the Costa Rica v. Nicaragua/Nicaragua v. Costa Rica case proves that this rule does not exist.300
198.
Further, the domestic laws referred to by the Respondent to try to establish the concentration of claims principle do not apply to this dispute.301 In any event, domestic laws do not show that such principle is a general principle of law. It does not apply as pleaded in three major jurisdictions: in France, where it is inappropriate in international proceedings; in the United Kingdom, where it is limited to cases of abuse of process, and in Germany, where it simply does not exist.302
199.
As a result, this ground does not bar Iberdrola from submitting its claims.

3. Fork in the road

200.
As a preliminary matter, the Claimant notes that, because the Respondent has formulated this objection in the alternative to its res judicata objection, the fork-in-the-road objection is premised on the fact that Iberdrola presents a different claim in this case than in prior cases. This disposes of the fork-in-the-road argument. Indeed, "if the claims in this arbitration are different from the ones submitted in the prior cases, Iberdrola cannot have exercised a via electa in relation to this dispute and claims."303
201.
As to the substance of the objection, the Claimant’s position is essentially that (a) Article 11(2) is not a fork-in-the-road clause; (b) even if it was, that clause was not triggered, and (c) Article 26 of the ICSID Convention has no application here.

a. Article 11(2) is not a fork-in-the-road clause

202.
The Claimant submits that Article 11 "does not establish that the choice of one or the other of the mechanisms by the investor shall be final" and thus "does not prevent an investor that had recourse to an infructuous via to go to a second forum to have its claims decided."304 Investment treaties resort to techniques limiting access to international arbitration, but these do not originate from a general principle of international law. Hence, for the investor’s choice to be irrevocable, an express rule is needed. Article 11 contains no such express rule. Citing several investment treaty awards, Iberdrola observes that the clause does not state that the investor’s choice will exclude any other option or be irrevocable or definitive, or include other similar wording.305 By contrast, other BITs concluded by Spain do provide that the choice of a particular forum is final.306 Similarly, Guatemala's treaty practice shows an awareness of the variety of wordings and, as a result, of their different implications.307
203.

The Claimant concludes that had the Contracting Parties "wished to include a fork-in-the-road, they would have clearly expressed such intent",308 which they did not do.

b. Even if Article 11(2) was a fork-in-the-road clause, it has not been triggered

204.
Assuming that Article 11(2) was a fork-in-the-road clause, it would only apply to treaty-based claims, as Article 11 only governs jurisdiction "regarding matters regulated by this Agreement".309 Consequently, the fork-in-the-road clause was not triggered by the amparo proceedings brought by EEGSA.310 It was not triggered either by the ICSID proceedings, because the Iberdrola I tribunal found that the Claimant brought domestic law claims rather than treaty claims. Hence, the claims in the two arbitrations are not the same and "[e]ven though in 2008 Iberdrola presented its claims in good faith as treaty claims, the tribunal in Iberdrola I ultimately considered they were not."311 The Respondent's position is contradictory: on one hand, it argues that the Claimant is bringing exclusively domestic law claims, while at the same time contending that they are treaty claims that trigger the fork-in-the-road clause.312
205.
Further, the Claimant contends that the fork-in-the-road clause can only be triggered where there is identity of parties, object and cause of action.313 Contrary to the Respondent’s contention, the Tribunal should not focus on the "fundamental basis of the dispute" test articulated in Pantechniki.314 The Claimant appears to agree with the Respondent that the purpose of Article 11 is "avoiding the duplication of proceedings and the risk of conflicting decisions."315 However, it is of the view that the broad interpretation of Pantechniki does not preserve this purpose better than a clear-cut criteria, and in addition it creates uncertainty, forcing the investor to resort to arbitration instead of seeking to resolve its disputes in the local courts.316
206.
As a result, "the operation of any fork-in-the-road clause must be analysed dispute by dispute," and "only the resubmission of the very same dispute will trigger its application."317 Moreover, the investor’s choice operates only with respect to the actual investment dispute, not with respect to future disputes. As a result, the investor may choose different dispute mechanisms for different disputes.318
207.
The Claimant further submits that the purpose of Article 11 is to attract investors through effective protection. With this goal in mind, the "prior choice of a 'dead-end’ road" cannot rule out other forum options for disputes not affected by res judicata.319
208.
Finally, the Claimant alleges that previous acts by the Respondent contradict its present position. In particular, Guatemala requested the Claimant to exhaust local remedies under Article 26 of the ICSID Convention. This would make no sense if the fork-in-the-road clause operated as the Respondent now alleges.320

c. Article 26 of the ICSID Convention does not bar the present proceedings

209.
The Claimant denies that Article 26 of the ICSID Convention prevents the Tribunal from finding that it has jurisdiction over its claims.
210.
According to the Claimant, the Respondent misinterprets Article 26 of the ICSID Convention, whether standing alone or in combination with Article 11 of the Treaty. "Article 26 protects the exclusivity of ICSID arbitration when valid and effective consent to such arbitration has been given and continues to exist."321 Here there is no consent to ICSID arbitration. Indeed, the Claimant’s consent to arbitration proved ineffective, since it did not match the Respondent’s offer, leading the Iberdrola I tribunal to deny jurisdiction. Furthermore, when the investor has consented through the institution of ICSID proceedings, it cannot be subject ad infinitum to the jurisdiction of a forum which has expressly refused to exercise that jurisdiction.322
211.
For the Claimant, the text of Article 26 establishes a presumption of exclusivity in favor of ICSID, which "operates to prevent parties from initiating other proceedings in domestic courts and/or other arbitral fora, while consent to ICSID jurisdiction is in place."323 This rule presupposes a valid and standing consent to ICSID arbitration.324 As explained by Prof. Schreuer, "if the tribunal has determined that the Centre does not have jurisdiction because there is no valid consent, Art. 26 does not apply and other remedies may be pursued."325 This interpretation is confirmed by the travaux préparatoires of Article 26. The travaux show that "[t]he drafters of the ICSID Convention intended Article 26 to be an interpretative aid in case of doubt as to whether, once consent to ICSID jurisdiction has been validly given and it is still in place, parallel domestic or international proceedings were permissible."326 Citing Delaume, Alghanim and Perenco, the Claimant stresses that both doctrine and arbitral practice corroborate that Article 26 is only relevant while ICSID jurisdiction exists. Accordingly, while Article 26 prevents parallel proceedings that cover the same dispute, consent to ICSID arbitration is not "fixed in stone forever more", and "[t]he stay in favour of ICSID’s exclusive jurisdiction [...] operates only for as long as that such jurisdiction is in being and will not operate in case of a negative finding on jurisdiction."327
212.
The Claimant argues that in Iberdrola I the tribunal determined that, as presented, the claims did not fall within Guatemala’s offer to arbitrate.328 As the Claimant’s consent was not effective, there is no exclusivity of ICSID arbitration, and the Claimant is not prevented from bringing this UNCITRAL arbitration.
213.
The Claimant further contends that the way in which the Respondent purports to use Article 26 would "at best prevent Iberdrola from obtaining an effective legal remedy for its still undetermined Treaty claims and at worst, lead to a denial of justice to Iberdrola."329 Relying on Casinos Austria, the Claimant argues that an expansive interpretation of Article 26 "would have the effect of denying a claimant the choice of forum set out in the BIT by requiring Iberdrola to submit its Treaty claims to ICSID or to potentially leave the Claimant with no forum to hear these claims [...] leaving Iberdrola without any effective legal remedy for its undecided treaty claims."330
214.
Finally, the Claimant submits that "Article 11(2) of the BIT does not affect or alter the correct interpretation to be given to Article 26"331 Concretely, Article 11(2) has two effects vis-à-vis Article 26. First, once the investor chooses ICSID as a forum and initiates ICSID proceedings, Article 26 is activated and the ICSID remedy is exclusive.332 Second, if ICSID determines that it has no jurisdiction (leaving aside the question of res judicata), then the investor may choose again between the available forums for the determination of its claim. This is what has happened here.333

4. Abuse of process

215.
The Claimant argues that it is "simply and transparently trying to have its claims heard and decided on the merits", and that "[n]o abuse can be found in such legitimate interest."334 It also contends that the Respondent presents a distorted notion of the abuse of process doctrine under international law.335 In particular, the Respondent has distorted the meaning of the Orascom decision, where the situation was clearly different: involving "multiple proceedings [...] initiated in parallel for a purely strategic reason by different entities of the same group of companies under different investment treaties". Here, by contrast, the Claimant started a first arbitration over which jurisdiction was denied and only thereafter did it bring a second arbitration under the same treaty "so that its treaty claims could be finally decided for the first time."336 If anything, Orascom shows that "the standard of abuse of process is quite high and should not be taken lightly."337
216.
Moreover, the Claimant underlines that the application of the doctrine of abuse of process to international arbitration is not firmly established.338 However, assuming that it applies at all in this context, Iberdrola notes that it refers to the abusive exercise of a legally recognized right or, in the words of Prof. Reisman, "the use of a legal process for an unlawful purpose";339 the burden of proof lies on the party alleging abuse;340 and the threshold to show an abuse of process is a high one, as was confirmed by several investment tribunals (see, e.g., Chevron, Caratube II, Waste Management II, SPP, Renée Rose Levy, Phoenix Action, Churchill Mining, Philip Morris v. Australia, Orascom, among others).341
217.
Lastly, the Claimant observes that as found by investment tribunals, in principle the existence of multiple proceedings in and of itself does not constitute an abuse of process, which implies that a party breaches the principle of good faith.342
218.
Understood in this light, the Claimant contends that the prohibition of abuse of process does not bar its claims. To the extent that it is not pursuing concurrent claims but only this arbitration, and has yet to obtain a single decision on the merits of its treaty claims, the submission of claim that has not yet been resolved cannot qualify as an abuse.343 Rather, it is the pursuit of a legitimate interest.344

5. Article 53 of the ICSID Convention

219.
The Claimant denies that its claims violate Article 53(1) of the ICSID Convention. Article 53(1) aims at protecting the finality of awards rendered under the auspices of the ICSID Convention. Citing Pey Casado I, it submits that "Article 53 of the Convention provides that the award is not subject to an appeal procedure by a superior adjudication body with the powers to scrutinize the merits of the award, suspend its binding effect during the appeal phase or issue a new decision that replaces the original award."345
220.
The Claimant acknowledges that "the award rendered in Iberdrola I is res judicata on what it decided (that it did not have jurisdiction to entertain what it characterised as local law claims) and cannot be reviewed, as mandated by Article 53 of the ICSID Convention."346 However, it argues that "Iberdrola does not seek a review of the content of the Iberdrola I Award or the subsequent annulment decision."347 For the Claimant, any dispute or issue not decided in the award is not affected by Article 53.348
221.
Citing Schreuer's commentary to Article 53 of the ICSID Convention,349 the Claimant further submits that "[i]n the absence of a decision on the merits from the Iberdrola I tribunal, Article 53 cannot be used by Guatemala to prevent Iberdrola's treaty claims being heard by this tribunal".350 The Claimant stresses that "the causa petendi in the current case is different to that decided in Iberdrola I and the res judicata rule is not applicable".351 The Claimant thus concludes that Article 53 does not prevent the Tribunal from hearing its treaty claims.352

6. Jurisdiction ratione materiae

222.
The Claimant insists that the Tribunal has jurisdiction ratione materiae, "because [...] this arbitration exclusively involves treaty claims."353 It also argues that the Respondent has failed to disprove that Iberdrola's claims are based on the BIT;354 the policy considerations advanced by Guatemala are incomplete, biased, and irrelevant to the present dispute;355 and Guatemala's "curing defects" reasoning lacks any merit and must be dismissed.356

C. Analysis

1. Preliminary Matters

a. Scope and language of this Award

223.
As determined in the Decision on Bifurcation, this Final Award deals with the Respondent's preliminary objections to jurisdiction and to the admissibility of the claims.357 It also resolves the counterclaim.
224.
In accordance with paragraph 2.1 of Procedural Order No. 1, the languages of this arbitration are Spanish and English. However, in accordance with paragraph 2.4 of that same Order, this Award has been made in English and is accompanied by a separate Spanish translation. In case of differences between the English and Spanish versions, the English version shall prevail.

b. Applicable procedural law

225.
As noted in Section 8.1 of the Terms of Appointment, this arbitration is governed by (in the following order of precedence):

i. The mandatory rules of the law of international arbitration applicable at the seat of the arbitration;

ii. The 1976 UNCITRAL Arbitration Rules, save where modified by these Terms of Appointment;

iii. The Terms of Appointment and the procedural rules issued by the Tribunal, as reflected in Procedural Order No. 1 and any amendments thereof.

226.
This arbitration is seated in Geneva and as such is subject to the mandatory rules of Swiss international arbitration law enshrined in Chapter 12 of the PILA.

c. Iura novit curia

227.
When applying the governing law, be it international or national, the Tribunal is not bound by the arguments and sources invoked by the Parties. Under the maxim iura novit curia - or, more precisely, iura novit arbiter - the Tribunal may apply the law of its own motion, provided it seeks the Parties’ views if it intends to base its decision on a legal theory that was not addressed and that the Parties could not reasonably anticipate.358

d. Relevance of prior decisions

228.
Both Parties have relied on previous decisions or awards in support of their positions, either to conclude that the same solution should be adopted in the present case, or in an effort to explain why this Tribunal should depart from that solution.
229.
The Tribunal considers that it is not bound by previous decisions. At the same time, in its judgement it must pay due consideration to earlier decisions of international tribunals. Specifically, it believes that, subject to compelling contrary grounds, it has a duty to adopt principles established in a series of consistent cases. It further believes that, subject always to the specific text of the BIT, and with due regard to the circumstances of each particular case, it has a duty to contribute to the harmonious development of international investment law, with a view to meeting the legitimate expectations of the community of States and investors towards the certainty of the rule of law.

2. Jurisdiction and admissibility

a. Legal framework

230.
The analysis will first set out the legal framework for the review of jurisdiction and admissibility (a below), assess ex officio the requirements for jurisdiction over which there is no objection (b below), before addressing the res judicata (c) and fork-in-the-road objections (d).
231.
The Parties rely on Article 11(3) of the BIT to argue that jurisdiction and admissibility, in particular res judicata, are governed by international law and first and foremost the BIT, which is the instrument of the Parties’ consent. Article 11(3) of the BIT reads as follows:

Artículo 11. Controversias entre una Parte Contratante e inversores de la otra parte contratante.
[...]
3. El arbitraje se basará en las disposiciones del presente Acuerdo, el derecho nacional de la Parte Contratante en cuyo territorio se ha realizado la inversión, incluidas la reglas relativas a los conflictos de Ley, así como también en las reglas y los principios de derecho internacional que pudieran ser aplicables. (Emphasis added).

English translation:
Article 11. Disputes between a Contracting Party and investors of the other [C]ontracting [P]arty.
[...]
3. The arbitration shall be governed by the provisions of this Agreement, the national law of the Contracting Party in whose territory the investment was made, including the rules on conflicts of laws, as well as the rules and principles of international law that may be applicable. (Emphasis added).

232.
While this clause elects the law to govern "the arbitration", which could point to a choice made for the arbitration proceedings, the bodies of law chosen rather suggest that this is a choice of the substantive law applicable to the merits of the dispute, akin to Article 42(1) of the ICSID Convention. Be this as it may, it is common ground that the Tribunal’s jurisdiction is governed by international law and especially by the BIT, be it because the latter is the instrument of the parties’ consent or by virtue of Article 11(3) of the BIT.
233.
It is also undisputed that the interpretation of the BIT is governed by the customary international law principles on treaty interpretation as codified in the VCLT.
234.
The law applicable to the admissibility of the claims before this Tribunal, including the admissibility defense of res judicata,359 deserves further elaboration. Subject to the role of Swiss law to which the Tribunal will revert below, the Parties agree that res judicata is governed by international law. The Claimant submits that "[the] Respondent’s res judicata objection, including determining what the ICSID tribunal decided" and "to what extent that tribunal’s negative jurisdictional award has preclusive effects over Claimant’s treaty claims, must be determined on the basis of international law".360 In the same vein albeit based on different reasoning, the Respondent asserts that "Article 11.3 of the Treaty defines the law applicable to the present arbitration proceedings, including to the issue of res judicata. [...] [T]he principle of res judicata under international law bars Claimant[] from resubmitting its claims".361
235.
In the Tribunal’s opinion, this view is consistent with the nature of admissibility, which "concern[s] the existence, scope and exercise of adjudicative power by the arbitral tribunal".362 Hence, it is logical that it be governed by the instrument that creates its adjudicative power, i.e., the BIT.363 The application of international law is also in conformity with the characteristics of the dispute and the source of the Tribunal’s adjudicatory power: (i) the Tribunal is a body established under an international instrument (the Treaty); (ii) the dispute involves the international responsibility of a State under a treaty; and (iii) the res judicata objection aims at preventing the issuance of two international awards on the same issue within the international legal order.
236.
At the same time, this arbitration is seated in Geneva and as such is subject to the mandatory rules of Swiss international arbitration law enshrined in Chapter 12 of the PILA. In this respect, the Tribunal notes that the arbitration agreement, composed of the State’s offer contained in the BIT and the investor’s acceptance contained in the Notice of Arbitration, meets the form requirement of Article 178(1) PILA,364 and that the application of the BIT to jurisdiction is in line with Article 178(2) PILA.365
237.
In answer to questions of the Tribunal, the Parties have commented on the relevance of Swiss law in matters of res judicata. For the Respondent, "the law of the seat should be taken into consideration to determine whether or not a future award could be set aside in the jurisdiction serving as the seat of the arbitration proceedings as part of the tribunal's duty to make every effort to render an award enforceable at law".366 The Claimant for its part argues that questions of res judicata should be decided solely on the basis of international law, Swiss law being limited to subsequent annulment or enforcement proceedings relating to the Award.367 In any event, it submits that Swiss law contains a "renvoi" to international law with regard to res judicata issues of a foreign award.368 The Claimant relies on a decision of the SFSC pursuant to which "[u]nless an international treaty states otherwise, the lex fori determines whether the claim raised before a foreign state court and the claim submitted to a Swiss court are identical".369 For the Claimant, the binding effects of an ICSID award are governed exclusively by Article 53(1) of the ICSID Convention,370 "which must be considered an international agreement whose terms provide 'otherwise', thereby creating an exception to the general rules on res judicata under Swiss Law".371
238.
In essence, the seat of the arbitration being in Switzerland, the forthcoming award may be challenged under Article 190(2) PILA. Swiss case law holds that an award that breaches the principle of res judicata is contrary to public policy and may thus be set aside on the basis of Article 190(2)(e), which provides for the annulment of awards that are irreconcilable with public policy.372
239.
When assessing an alleged breach of the principle of res judicata in application of Article 190(2)(e), the SFSC determines the existence and scope of the res judicata of the prior foreign judgment or award under that decision's own law. In the present case, as was established above, that law would be international law. The SFSC then ascertains that the foreign decision is not given wider res judicata effects than those it would enjoy under Swiss law. Or in the words of the SFSC:

Res judicatadepends on the law of the state of origin, so it behooves this law to specify the conditions and limits of its effect [...] Therefore, the subjective, objective, and temporal scope of res judicata may vary from one legal order to the other. Harmonization in this field must be sought to the extent possible, however, and it is achieved as follows : in Switzerland, a recognized foreign judgment has only the authority it would have if issued by a Swiss court. Thus, a declaratory foreign judgment which could be opposed to third parties according to the law of a state of origin will only enjoy such authority in Switzerland with regard to the parties to the proceedings [...]. Similarly, the res judicata effect of a foreign judgment, which could extend to its reasons according to the law of the state of origin, will be admitted in Switzerland only as to the operative part of the judgment [...]. Conversely, a foreign judgment may not produce more effects in Switzerland than it has pursuant to the legal order from which it originates [...]. (Emphasis added).373

240.
It arises from the decision just quoted and from other authorities374 that this test only applies if the foreign judgment or award can be recognized in Switzerland. The Iberdrola I Award is an ICSID Award and Switzerland is an ICSID Contracting State. As such, Switzerland is bound to recognize an ICSID award under Article 54(1) of the ICSID Convention "as if it were a final judgment of a court in that State". This requirement is thus met.
241.
The Claimant agrees that Swiss law will apply in the event of annulment proceedings, but only if no treaty provides otherwise and it considers that the ICSID Convention, and in particular Article 53(1) constitutes such a treaty. Article 53(1) stipulates that "[t]he award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in the Convention". It is the source of the binding force of ICSID awards. On the basis of this provision, a dispute resolved by an ICSID award is a res judicata, a matter adjudged. It is thus relevant to the first prong of the test developed by Swiss case law, which was just referred to, i.e. to the determination of the existence of res judicata. Beyond that, Article 53(1) does not say whether and to what extent a second tribunal seised with a potentially identical claim may or may not entertain that claim.
242.
In summary, the Tribunal understands that, if called upon, the SFSC would ensure that the Tribunal has not given the Iberdrola I Award more res judicata effects than it would have under Swiss law. Because it has a duty to seek to render an award that is valid under the law of the seat, the Tribunal must thus verify when assessing res judicata under international law that it does not reach results that would conflict with Swiss law. As will be seen below, this verification will be unproblematic as the regime of res judicata under international and Swiss law reveals no outcome-determinative differences.
243.
The jurisdiction of this Tribunal is alleged to be based on Article 11 of the BIT, which reads as follows:

Artículo 11. Controversias entre una Parte Contratante e inversores de la otra parte contratante.

1. Toda controversia relativa a las inversiones que surja entre una de las Partes Contratantes y un inversor de la otra Parte Contratante, respecto a cuestiones reguladas por el presente Acuerdo será notificada por escrito, incluyendo una información detallada, por el inversor a la Parte Contratante receptora de la inversión. En la medida de lo posible las partes en controversia tratarán de arreglar estas diferencias mediante un acuerdo amistoso.

2. Si la controversia no pudiera ser resuelta de esta forma en un plazo de seis meses a contar desde la fecha de notificación escrita mencionada en el párrafo 1, la controversia podrá someterse, a elección del inversor:

a) a los tribunales competentes de la Parte Contratante en cuyo territorio se realizó la inversión; o

b) a un tribunal de arbitraje ad hoc establecido de acuerdo con el Reglamento de Arbitraje de la Comisión de las Naciones Unidas para el Derecho Comercial Internacional; o

c) al Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (C.I.A.D.I.) creado por el «Convenio sobre el arreglo de diferencias relativas a Inversiones entre Estados y Nacionales de Otros Estados», abierto a la firma en Washington el 18 de marzo de 1965, cuando cada Estado parte en el presente Acuerdo se haya adherido a aquél. En caso de que una de las Partes Contratantes no fuera Estado Contratante del citado Convenio, la controversia se podrá resolver conforme al Mecanismo Complementario para la Administración de Procedimientos de Conciliación, Arbitraje y Comprobación de Hechos, por la Secretaría del C.I.A.D.I.

3. El arbitraje se basará en las disposiciones del presente Acuerdo, el derecho nacional de la Parte Contratante en cuyo territorio se ha realizado la inversión, incluidas las reglas relativas a los conflictos de Ley, así como también en las reglas y los principios de derecho internacional que pudieran ser aplicables.

4. La Parte Contratante que sea parte en la controversia no podrá invocar en su defensa el hecho de que el inversor, en virtud de un contrato de seguro o garantía, haya recibido o vaya a recibir una indemnización u otra compensación por el total o parte de las pérdidas sufridas.

5. Las decisiones arbitrales serán definitivas y vinculantes para las partes en la controversia. Cada Parte Contratante se compromete a ejecutar las sentencias de acuerdo con su legislación nacional.
English translation:
Article 11. Disputes between a Contracting Party and investors of the other [C]ontracting [P]arty.
1. Any dispute relating to investments arising between one of the Contracting Parties and an investor of the other Contracting Party, concerning matters governed by this Agreement shall be notified in writing, including detailed information, by the investor to the Contracting Party receiving the investment. As far as possible, the disputing parties shall endeavour to settle these differences by amicable agreement.
2. If the dispute cannot be settled in this manner within six months from the date of written notice referred to in paragraph 1, the dispute may be submitted, at the choice of the investor:
a. to the competent courts of the Contracting Party in whose territory the investment was made; or
b. to an ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law; or
c. to the International Centre for the Settlement of Investment Disputes (ICSID) created by the "Convention on the Settlement of Investment Disputes between States and Nationals of Other States", opened for signature in Washington on 18 March 1965, when each State party to this Agreement has acceded to it. Should one of the Contracting Parties not be a Contracting State to said Convention, the dispute may be resolved pursuant to the Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding Procedures by the ICSID Secretariat.
3. The arbitration shall be governed by the provisions of this Agreement, the national law of the Contracting Party in whose territory the investment was made, including the rules on conflicts of laws, as well as the rules and the principles of international law that may be applicable.
4. The Contracting Party that is a party to the dispute shall not invoke in its defence the fact that the investor, by virtue of an insurance contract or guarantee, received or will receive a compensation for the total or part of the losses suffered.
5. Arbitral decisions shall be final and binding for the disputing parties. Each Contracting Party undertakes to enforce such decisions in accordance with its national legislation.

244.
It is common ground that this Tribunal is the judge of its own jurisdiction. As the ICJ explained in the Nottebohm case, the Kompetenz-Kompetenz principle is a "rule consistently accepted by general international law in the matter of international arbitration", according to which "in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction."375 This principle is also expressed in Article 186(1) PILA which provides that "[t]he arbitral tribunal shall rule on its own jurisdiction."376 It is further enshrined in Article 21(1) of the UNCITRAL Rules 1976.377
245.
It is less clear whether, faced with a res judicata defense, a tribunal should start with the review of such defense or rather discuss its jurisdiction first and only then address res judicata. This is because, as set out in the Decision on Bifurcation378 and accepted by the Claimant,379 the res judicata defense is an objection to the admissibility of the claims. As the ICJ has held, it "consists in the contention that there exists a legal reason, even when there is jurisdiction, why the Court should decline to hear the case, or more usually, a specific claim therein."380 In theory at least, applying the principle of Kompetenz-Kompetenz, the Tribunal should first address whether it has the competence to act, and, if it does, it should then determine whether the claims are admissible, i.e., whether, despite the Tribunal's having the competence to resolve a claim, there are other legal reasons why that claim cannot be heard.381
246.
In the Tribunal's opinion, here this may well be a distinction without a difference. Indeed, while only a tribunal with jurisdiction can review the admissibility of the claims before it, here the admissibility defense refers to issues pertaining to jurisdiction. In reality, it is difficult to keep the two aspects entirely separate when the res judicata, that is the matter allegedly finally decided, is precisely the Tribunal's jurisdiction, or more precisely, its lack of jurisdiction, over the dispute at hand. In a decision to which both Parties refer, the SFSC made the same observation after having stressed the "kinship that exists between the issue of jurisdiction and that of res judicata"382 in the following terms:

Thus, the arbitral tribunal, which entertains a claim that has already been the subject matter of a judgment vested with res judicata and which issues an award on such claim, even if it does so on the basis of an arbitration agreement and hence cannot be deemed to lack jurisdiction and cannot be sanctioned on the basis of the provision just mentioned [i.e., Article 190(2)(b) which provides that lack of jurisdiction is a ground for annulment], nevertheless ultimately arrogates to itself ratione materiae jurisdiction which it lacks.383

247.
Before proceeding further, the Tribunal must deal with the Claimant’s argument that Guatemala has accepted jurisdiction by filing a counterclaim. In fact, the Respondent has stated that it "is not objecting to the Tribunal’s jurisdiction to decide claims under the Treaty"; its "objection is that these claims have already been decided".384 At the same time, however, Guatemala has raised a jurisdictional defense linked to the fork in the road allegedly contained in Article 11(2) of the BIT. Hence, the Tribunal understands that the Respondent does not challenge jurisdiction, except in relation to the fork in the road, and objects on the ground of res judicata. In any event, the Tribunal cannot accept that the Respondent has voluntarily submitted to its jurisdiction by conduct through the mere act of raising a counterclaim. Indeed, the counterclaim seeks redress for bringing claims under the Treaty over which the Tribunal is said not to have jurisdiction. Hence, lack of jurisdiction is the very basis for the counterclaim. In the circumstances, one cannot discern how the act of bringing the counterclaim could be deemed a waiver of the jurisdictional objection.
248.
Finally, the Tribunal notes that, being seized on the basis of a treaty, it must assess its jurisdiction ex officio, which it will proceed to do now.

b. Ex officio assessment of jurisdictional requirements

249.
Subject to res judicata and fork in the road, the Respondent does not challenge the Tribunal’s jurisdiction, and rightly so. The BIT requirements are in effect met. One could of course argue that all the requirements provided in the BIT have been dealt with in Iberdrola I and therefore must be deemed outside the reach of this Tribunal as a matter of res judicata. The Respondent has not advanced this argument and has limited its objection to the nature of the claims at hand. Be this as it may, it would make no difference as there is no conflict among the Parties about the fulfillment of these requirements, the Tribunal shares the Parties’ views, and Iberdrola I did not decide to the contrary.
250.
Indeed, the dispute is between the Republic of Guatemala, one of the Contracting Parties to the BIT, and the Claimant, a corporation incorporated in the Kingdom of Spain, the other Contracting Party to the BIT.385 The Tribunal thus has ratione personae jurisdiction (Article 11(1)).
251.
Likewise, the dispute concerns an investment made by the Claimant in the territory of the Respondent, in accordance with Guatemalan law (Articles 11(1) and 12). The Respondent does not dispute the existence of that investment, nor has it argued that the investment was not made in accordance with Guatemalan law.
252.
It is similarly undisputed that the dispute between the Parties arose after the BIT's entry into force (Article 12). The Tribunal thus has ratione temporis jurisdiction.
253.
It is also common ground that the Claimant sent its notice of dispute to the Respondent on 7 February 2017, requesting the Respondent to engage in negotiations for an amicable settlement of the dispute,386 and sent two further letters requesting amicable negotiations.387 The Claimant then initiated the present UNCITRAL arbitration on 15 November 20 1 7.388 Hence, the six-month cooling-off period provided in Article 11(2) has also been complied with.
254.
In addition to these requirements, under Article 11(1) of the BIT the Claimant must show that the dispute arises from "matters governed by this Agreement". Further, it is a well-established rule that, when examining their jurisdiction, tribunals must ascertain whether, if proven, the facts alleged may constitute treaty breaches. Differently put, the claims must fulfill the pro tem test.389 The Iberdrola I tribunal found that these requirements -which define the subject matter scope of the Tribunal's jurisdiction - were not met, and therefore found that it lacked jurisdiction ratione materiae. The question is whether this finding is binding on this Tribunal. This is the point where the analysis of jurisdiction intersects with the issue of res judicata.

c. Res judicata

255.
Although the Respondent has raised a number of objections to the jurisdiction of the Tribunal and the admissibility of the claims, and the Parties have debated numerous theories and arguments, the essential question which the Tribunal must resolve can be framed in simple terms: Is this Tribunal barred from hearing the claims submitted to it by virtue of a negative jurisdictional decision issued by an ICSID tribunal in respect of the same dispute? If the answer is affirmative, then it puts an end to the inquiry. If it is negative, then the Tribunal will need to examine other defenses raised by the Respondent. In other words, the primary question before the Tribunal is whether the award issued in Iberdrola I carries res judicata effects, and thus precludes this Tribunal from reopening the jurisdictional question decided by the Iberdrola I tribunal.
256.
As noted by the ILA, "[t]he term res judicata refers to the general doctrine that an earlier and final adjudication by a court or arbitration tribunal is conclusive in subsequent proceedings involving the same subject matter or relief, the same legal grounds and the same parties (the so-called 'triple-identity’ criteria)."390 Both Parties recognize that res judicata is a general principle of law and a principle of international law.391
257.
The ILA explains that res judicata has "a positive effect (namely, that a judgment or award is final and binding between the parties and should be implemented, subject to any available appeal or challenge); and a negative effect (namely, that the subject matter of the judgment or award cannot be re-litigated a second time, also referred to as ne bis in idem)".392 As noted in the Orinoco case, it means that "a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed".393
258.
The decision issued by the Iberdrola I tribunal is an award on jurisdiction, more specifically, a negative award on jurisdiction. It is undisputed that the Iberdrola I Award did not rule on the merits of the claims, with the exception of the denial of justice claim. Hence, the question is not whether the merits of the claims before this Tribunal have already been decided; it is whether the jurisdiction of an investment tribunal constituted under the BIT over the claims before the present Tribunal has already been decided, thus precluding this Tribunal from reassessing that jurisdictional issue.
259.
This question raises a number of sub-issues. Bearing in mind the findings on applicable law reached above, the Tribunal must first ascertain whether a negative ruling on jurisdiction can have res judicata effects (i). If this is so, then the requirements for a successful res judicata defense must be identified and applied to determine whether the Iberdrola I Award carries preclusive effects with respect to this arbitration (ii). This determination will in particular imply a comparison between the claims involved in the negative decision of Iberdrola I and those over which this Tribunal is requested to assess jurisdiction. The Tribunal will then conclude as to whether the res judicata defense precludes the present claims (iii).

(i) Can a negative decision on jurisdiction have res judicata effect?

260.
The Parties agree - with certain nuances - that negative jurisdictional decisions can have res judicata effect. Relying on ICJ jurisprudence, the Respondent submits that "[t]he principle of res judicata applies both to arbitral awards on the merits of the dispute and to decisions and awards on jurisdictional objections."394 The Claimant submits that "decisions on jurisdiction do not have preclusive effects over merits issues", but does not deny that negative jurisdictional decisions carry res judicata effect.395 Indeed, the Claimant accepts that "in principle a decision on jurisdiction has res judicata effect as regards the matters that it definitively decides [...]."396 During the hearing, the Claimant confirmed that the Iberdrola I Award is final and binding, but only regarding the issues that it definitively settled (a subject discussed further below).397
261.
This being so, in reliance on various decisions of international tribunals,398 the Claimant submits that no res judicata bar applies when "the jurisdictional barrier or flaw can be corrected."399 In the same vein, the Claimant notes that under Swiss law "[...] the res judicata effect of a negative jurisdictional decision rendered by a Swiss seated Tribunal may depend on the grounds on which an arbitral tribunal found that it lacked jurisdiction".400 The Respondent for its part "does not dispute the existence of certain jurisdictional defects that may be remedied at a later date"; however, it contends that "the opportunity to 'cure' a jurisdictional defect refers exclusively to essential procedural requirements for submitting a dispute to arbitration involving claims that would otherwise be premature".401 In the case at hand, "the Claimant's legal strategy is not a defect that can be corrected or 'cured’ in this new arbitration"402 since it is not a procedural requirement.403
262.
The Tribunal agrees with the Parties that an award declining jurisdiction in principle carries res judicata effects, subject to certain exceptions addressed below (see 267). Under both international law and Swiss law, a negative decision on jurisdiction ends the arbitral proceedings and is thus a final (and binding) award which carries preclusive effects.404 Article 53 of the ICSID Convention confirms the finality and finding force of ICSID awards.
263.
The ILA states in this respect that "[a]s to awards on jurisdiction and subject to the applicable law, the Recommendations [on res judicata] do not exclude giving such awards conclusive and preclusive effects."405 The same report adds that "[a]n award declining jurisdiction entails a decision that there is no agreement to arbitrate or that the dispute does not fall within the ambit of the arbitration agreement, and accordingly the general jurisdiction of domestic courts may revive."406
264.
According to a recent treatise on res judicata "the majority of commentators appears to agree that both positive and negative arbitral decisions on jurisdiction constitute 'genuine arbitral awards’ and should be entitled to the same res judicata effects as other arbitral awards."407 For instance, Fouchard, Gaillard and Goldman write that "[a] decision on jurisdiction, the applicable law or the principle of liability [...] is a final decision on one aspect of the dispute", and "should therefore be considered as an award, against which an immediate action to set aside can be brought".408 Likewise, Born affirms that "a tribunal’s determination that it lacks jurisdiction should be subject to annulment, recognition and preclusive effects as an arbitral award under both national arbitration legislation and international arbitration conventions."409
265.
Swiss commentators also opine that a negative award on jurisdiction carries res judicata effects. Some suggest that preclusion will depend on the grounds for declining jurisdiction.410 The following comment by Berger and Kellerhals is instructive:

If an arbitral tribunal with its seat in Switzerland renders an award declining jurisdiction on the grounds that the arbitration agreement is invalid or inexistent or does not cover the subject-matter of the dispute, such decision must be recognised by, and thus is binding upon, any Swiss court or arbitral tribunal with its seat in Switzerland seised at a later date with the same matter between the same parties. Any Swiss authority seised second - whether a state court or an arbitral tribunal - shall thus decide on its jurisdiction without having the authority to re-examine the validity and existence of the arbitration agreement at issue. The same applies if the award declining jurisdiction has been made by an arbitral tribunal with its seat abroad, provided that such award can be recognised in Switzerland under PILS, Art.194 and the [New York Convention]. However, no binding effect emanates from a decision of an arbitral tribunal declining jurisdiction merely on the grounds that the claimant proceeded before the "wrong" arbitral tribunal or the "wrong" arbitral institution (e.g. an arbitral tribunal under the auspices of the ICC instead of the Swiss Chambers' Arbitration Institution).411

266.
It is thus clear that a decision declining jurisdiction because the tribunal held that the arbitration agreement was invalid or did not cover the subject matter of the dispute is res judicata and has a preclusive effect on a second arbitral tribunal seised of the same matter.
267.
By contrast, some jurisdictional flaws can be cured with the consequence that an award denying jurisdiction is not preclusive. A jurisdictional defect may be remedied when a procedural requirement was not previously complied with, such as a cooling-off period or waiver. A defect may also be curable when the ground for declining jurisdiction is specific to the first tribunal and does not apply to the second tribunal, for instance, when the claimant has proceeded before the "wrong" arbitral institution; or if an ICSID tribunal declines jurisdiction because either the respondent State or the home State of the investor is not a party to the ICSID Convention; or because Article 27 of the ICSID Convention has been breached; or because the dispute is about a class of disputes carved out by the respondent State under Article 25(4).
268.
In this case, we are not in the presence of any of these categories. Putting to one side for present purposes the fork-in-the-road objection, there was no defect or impediment to the making of the Iberdrola I claim, such as the granting of a waiver of other remedies as a condition of submitting the claim to international arbitration412. Rather, after hearing the Parties, in particular the Claimant’s arguments that certain Treaty breaches had been made out and the Respondent’s arguments that the Claimant had failed to state a claim based on the Treaty standards, the Iberdrola I tribunal denied jurisdiction because it found that the claims as submitted by the Claimant were not "matters governed by the Treaty" as required by Article 11(1). As discussed in more detail below, it found that the facts, as alleged, could not amount to breaches of the Treaty. While the Claimant has argued that the Iberdrola I tribunal’s decision was premised on the way in which the Claimant formulated its claims, this is not a jurisdictional flaw that can be remedied. Claimants do not get second opportunities to re-argue their cases simply because their pleadings in the first proceeding were badly formulated.
269.
The fact of the matter is that the Iberdrola I tribunal held that, even though the Claimant repeatedly described the Respondent’s measures which it sought to impugn as breaches of the Treaty, the dispute brought by the Claimant did not fall within the subject matter scope of the arbitration agreement, and as a result, the tribunal lacked jurisdiction ratione materiae. This is a final and binding decision that may carry res judicata effects, if the requirements for the application of the res judicata principle are met, which is the question to which the Tribunal now turns.

(ii) Requirements for res judicata

270.
The Parties agree - and rightly so - that under international law the Tribunal must apply the triple identity test to determine whether the Iberdrola I Award has res judicata effect for these proceedings ((1) below).413 They disagree however on whether this test is met here. In this context, the Respondent advocates for an autonomous and flexible approach to the triple identity test.
271.
Further, the Claimant submits that there is an additional requirement for res judicata to apply: the claims raised in the first proceeding must have been "definitively settled" by the previous decision ((2) below).

(1) Is the triple identity test met?

272.
To establish whether res judicata is met, international courts and tribunals414 have consistently applied the triple identity test, which requires (i) identity of parties (personae), (ii) identity of object (petitum), and (iii) identity of cause of action or legal grounds (causa petendi) between the first and second proceedings.415 As the ILA explains, for an award to have conclusive and preclusive effects:

i. "[I]t must have been rendered between the same parties as the parties in the further arbitration proceedings" (identity of parties);416

ii. "[T]he same claim or relief must be sought in the further arbitration proceedings" (identity of object or subject matter);417 and

iii. "[T]he claims or relief sought in further arbitration proceedings must be based on the same cause of action as in the prior arbitration proceedings".418

273.
The ILA also adds a fourth requirement: "the prior award must be final and binding and capable of recognition in the country where the arbitral tribunal of the subsequent arbitration proceedings has its seat".419 The Parties have not specifically discussed this requirement; however, it is indisputable that the Iberdrola I Award is final, binding, and capable of recognition in Switzerland, as was already mentioned above.
274.
As the Parties recognize, Swiss courts apply a similar test to determine if a previous decision is res judicata, but limited to the following two requirements: (i) identity of the parties and (ii) identity of the subject matter of the dispute.420 The identity of the subject matter is defined by reference to the facts and the request for relief without requiring identity of cause of action.421 In other words, it is sufficient that the same parties have already submitted the same request for relief based on the same facts to another court.422
275.
Applying the more stringent test found in international law, the Tribunal finds that there is triple identity between the Iberdrola I proceedings and the present proceedings for the following reasons. If that test is met, the requirements of Swiss law will necessarily be fulfilled too.
276.
First, it is undisputed that there is identity of parties, as both cases involve Iberdrola Energía S.A. as the claimant and the Republic of Guatemala as the respondent.
277.
Second, it is also undisputed that there is identity of object or petitum.423 The Iberdrola I Award being a decision on jurisdiction, the question arises whether one must focus on the petitum on the merits or on the (implied) request to uphold jurisdiction over the dispute. In reality, both probably should be addressed: jurisdiction, because the present objection aims at a jurisdictional decision, and merits, and because jurisdiction can only be defined by reference to a substantive dispute.
278.
Starting with the substantive petitum, in both cases the Claimant requested the tribunal to hold that Guatemala had violated Article 3 of the Treaty and to order the State to pay compensation. Specifically, in Iberdrola I, the Claimant sought the following relief with regard to the merits:

Por todo lo anterior, Iberdrola solicita del Tribunal:

I. Que declare que la República de Guatemala ha incumplido sus obligaciones internacionales por haber infringido las disposiciones del Tratado.

II. Específicamente, que declare que las acciones atribuidas a Guatemala constituyen, alternativamente, una expropiación según el art. 5 del Tratado o un incumplimiento de sus obligaciones de protección de la inversión de Iberdrola conforme al art. 3 del Tratado, en particular de otorgar un tratamiento justo y equitativo a las inversiones de Iberdrola, y/o de proporcionarles plena protección y seguridad jurídica, y/o de no interferir en la inversión mediante medidas arbitrarias, y/o de observar sus obligaciones contraídas por escrito en relación con las inversiones. [...].424

279.
In turn, in its Notice of Arbitration in this case, the Claimant requested the following request for relief:

Por las razones expuestas, la Demandante solicita al Tribunal que se constituya que: [...]

(ii) Declare que Guatemala ha violado el artículo 3 del Tratado, en particular las obligaciones de otorgar un tratamiento no menos favorable que el requerido por el Derecho internacional, de otorgar un trato justo y equitativo, y de no adoptar medidas arbitrarias o discriminatorias; [...].425

280.
With regard to the jurisdictional petitum, the Claimant has requested the tribunal in both cases to assert jurisdiction over the dispute on the basis of Article 11(1) of the Treaty.426 Further, in both cases the factual matrix is identical.427 This implies that the Claimant requested the Iberdrola I tribunal to uphold its jurisdiction in relation to claims, facts and an arbitration agreement all of which are identical to those invoked in the case at hand.
281.
Third, there is identity of cause of action. The legal ground invoked by the Claimant as basis for the Tribunal’s jurisdiction in both cases is identical, namely Article 11(1) of the Treaty. More specifically, the basis for the Tribunal to assess its jurisdiction is the Parties’ consent to submit their investment dispute to arbitration, which results from the Respondent’s offer found in Article 11(1) of the Treaty and from the Claimant’s acceptance of such offer through the filing of the Request for Arbitration. The fact that the Iberdrola I arbitration was conducted under different arbitration rules than the present case is not relevant. Indeed, the jurisdiction of the Tribunal does not arise from the arbitration rules chosen by the Claimant, but from Article 11(1) of the Treaty and the Parties’ consent to arbitrate.
282.
There is also identity of cause of action with regard to the merits. In both cases, the Claimant has invoked the same legal basis for the claims, namely, a breach of Article 3 of the Treaty. While the Claimant admits so much, it argues that there is no identity of cause of action,428 because the Iberdrola I tribunal held that the claims were grounded on national law, as opposed to international law.
283.
The Tribunal cannot uphold that argument. To determine whether there is identity of cause of action, the legal authorities confirm that what must be compared are the legal grounds relied upon by the claimant in support of the relief sought.429 The characterization of that legal ground by the Iberdrola I Award is thus irrelevant. As the Respondent argues, the requirement of identity of cause of action bars the Claimant from raising the same claim a second time "in a new light."430 Indeed, as stated above, the way in which the Claimant previously sought to argue its claims of breach of international law cannot now be characterized as a curable jurisdictional defect.
284.
The Respondent also argues in the alternative that what matters is whether the claims in Iberdrola I were based on the facts alleged in this second arbitration,431 which the Claimant has admitted is the case.432 It submits that "the contemporary trend in international arbitration is an autonomous and flexible approach to res judicata"433 and that "[i]nstead of rigid identity tests, an overall assessment of the parties involved, the legal grounds invoked, the objects pursued and the underlying facts will be necessary in order to avoid a multiplication of proceedings with its inherent danger of conflicting outcome".434 While the Claimant has also endorsed a less formalistic approach to res judicata,435 it disagrees with the Respondent’s attempt to focus only on the parties to the dispute and the underlying facts, arguing that the scope of res judicata "is also limited by the object of the claims (the relief sought) and fundamentally by their legal basis (i.e., the causa petendi)."436
285.
Having held that the formal triple identity test is met, the Tribunal can dispense with entering this debate. However, for the sake of completeness, it notes that if it were to adopt a less formalistic test, it would likewise reach the conclusion that the subject matter of the dispute is identical.

(2) Was the Tribunal’s jurisdiction ratione materiae "definitively settled" by the Iberdrola I tribunal?

286.
In reliance on ICJ jurisprudence,437 the Claimant asserts that a further requirement must be fulfilled for the Iberdrola I Award to carry res judicata effects over the present proceedings: the claims brought in the later proceedings must have been finally decided in the prior action.438 According to the Claimant's expert Prof. Reisman, the application of res judicata in public international law "is confined to the preclusion of claims that not only have been raised but have been decided with finality in the earlier judgment".439 As a result, the res judicata objection requires the Tribunal "to review in detail the prior award in order to determine whether or not the object of the claim or claims before it had been definitively decided by the prior tribunal."440
287.
For the Claimant, the task is to "compar[e] what was decided in the Iberdrola I award and what claims have been submitted here".441 To do so, it adds that "it may be necessary to determine the meaning of the operative clause by reference to the reasoning set out in the judgement in question".442 In this respect, Iberdrola contends that "the tribunal in Iberdrola I did not decide any treaty claims, characterizing the claims before it as Guatemalan law claims".443 The Respondent denies that the res judicata authority of an award is limited to what the tribunal decided "expressly or by necessary implication",444 but does not dispute that the Tribunal must establish what the first tribunal definitively resolved. The Respondent further accepts that the reasoning behind the operative part of the award must be taken into account for purposes of establishing the scope of res judicata.445
288.
The Claimant is correct in pointing out that under international law res judicata will only bar a second adjudication if the claims before the second court or tribunal have been "definitively settled" in the first proceedings. The ICJ has recalled this requirement in two recent decisions, Nicaragua v. Colombia and Costa Rica v. Nicaragua, in the following terms:

It is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed. The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same Parties; it must determine whether and to what extent the first claim has already been definitively settled.446

[F]or res judicata to apply in a given case, the Court 'must determine whether and to what extent the first claim has already been definitively settled’ [...] for '[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it’.447

289.
It is equally correct, as both Parties agree, that not only the operative part of a judgment or award has res judicata authority, but that the second court or tribunal may consult the reasons to elucidate the meaning of the operative part.448 This is particularly true in the case of negative decisions on jurisdiction, where the operative part may not state which jurisdictional requirement was deemed to be lacking.
290.
Accordingly, the Tribunal must now review the operative part of the Iberdrola I Award, if necessary in light of the relevant reasons, to establish whether the claims raised in this arbitration were definitively settled in the ICSID proceedings.
291.
The operative part of the Iberdrola I Award provides as follows:

El Tribunal Arbitral, de conformidad con los Artículos 41, 48 y 61 del Convenio del CIADI y las Reglas 28, 41 y 47 de las Reglas de Arbitraje, por unanimidad resuelve:

1. Aceptar la excepción a la jurisdicción del CIADI y a la competencia del Tribunal presentada por la República de Guatemala, con respecto a las peticiones de la Demandante de que se declare la ocurrencia de una expropiación; la violación del estándar de trato justo y equitativo; la violación de la obligación de proporcionar plena protección y seguridad; la violación de la obligación de no interferir en la inversión y la obligación de Guatemala de cumplir las obligaciones contraídas en relación con las inversiones de la Demandante;

2. Denegar la pretensión de la Demandante de que la República de Guatemala incurrió en este caso en actos de denegación de justicia;

3. Declarar que la Demandante debe asumir la totalidad de sus propios costos y la totalidad de los costos en que incurrió la Parte Demandada que ascienden a la suma de USD $5,312,107.449

292.
As is evident from the language just quoted, the Iberdrola I Award granted the Respondent’s objection to jurisdiction over the claims for expropriation, FET, full protection and security, and the impairment and umbrella clauses. It is clear that the claims over which jurisdiction is denied are Treaty claims. To understand whether the denial is due to a defect that can be remedied,450 one must turn to the body of the Award.
293.
The Iberdrola I Award records that the Respondent raised a defense of lack of jurisdiction ratione materiae because the dispute was contractual and regulatory in nature and did not concern matters governed by the Treaty as required by the Treaty’s dispute settlement clause:

a. Iberdrola somete al Tribunal un desacuerdo cuya base esencial es regulatoria y contractual y que no puede calificarse como controversia según el Tratado. Consecuentemente, no hay jurisdicción ratione materiae.

[...]

Según la Demandada, sus excepciones se refieren a la jurisdicción ratione materiae del Tribunal y se basan, en gran parte, en el hecho de que la Demandante no ha sometido al Tribunal una reclamación 'respecto a cuestiones reguladas en el Tratado,’ como dispone su Artículo 11. [...] 451

294.
A review of the analysis contained in the Iberdrola I Award shows that that tribunal granted this objection. It held that the facts as alleged, if proven, could not constitute Treaty breaches.452 It reached this conclusion because, in its opinion, Iberdrola’s claims, except for the denial of justice claim which was adjudicated, concerned matters of Guatemalan law.453 Not being Treaty claims, the relief sought by the Claimant fell outside the scope of the arbitration provision embodied in Article 11 of the Treaty, which applies only to disputes in relation to investments between a Contracting Party and an investor of the other Contracting Party "respecto a cuestiones reguladas por el presente Acuerdo". The Iberdrola I tribunal made its determination after Iberdrola was given a full opportunity to make its case both before, during and after the hearing. The tribunal even expressly requested Iberdrola for a statement in its post-hearing brief about "las supuestas violaciones al Tratado que se habían dado, en qué consistían y mediante cuáles actos específicos se habían concretado".454
295.
To fully understand why the Iberdrola I tribunal declined jurisdiction, it is helpful to quote the relevant passages of the analysis in full:

[349] Como bien se puede observar en los diferentes escritos y alegaciones formuladas a lo largo de este arbitraje, la sustentación de la Demandante de la alegada violación de Guatemala de los estándares del Tratado se basa en las diferencias de interpretación de las normas de la República de Guatemala y de las fórmulas económicas para calcular el VAD que tuvieron EEGSA y la CNEE, durante el proceso de revisión tarifaria para el quinquenio 2008 - 2013. Más allá de etiquetar las actuaciones de la Demandada, la Demandante no presenta un razonamiento claro y concreto sobre cuáles son, a su juicio, los actos de imperio de la República de Guatemala que, en derecho internacional, podrían constituir violaciones del Tratado. En las alegaciones de la Demandante, el Tribunal no encuentra más que una discusión de derecho local, que no tiene competencia para retomar y volver a resolver como si fuera una corte de apelación. [...]

[350] Para el Tribunal Arbitral es claro, como se expondrá más adelante, que un tribunal internacional no tiene competencia por el solo hecho de que una de las partes del proceso afirme que el derecho internacional ha sido vulnerado. En un caso como el planteado por la Demandante en este arbitraje, el Tribunal únicamente tendría jurisdicción si esta hubiera demostrado que los hechos que alegó, de ser probados, podrían constituir una violación del Tratado. Según se analiza a continuación, la Demandante no demostró esa premisa básica y se limitó a someter a la consideración del Tribunal una controversia de derecho nacional guatemalteco.

[351] Como lo afirmó el Tribunal y lo acredita el expediente, más allá de la calificación que la Demandante dio a los temas controvertidos, la parte sustancial de esos temas y, sobre todo, de las controversias que la Demandante pide al Tribunal que resuelva, se refieren al derecho guatemalteco. En los distintos escritos presentados durante el arbitraje, las Partes debatieron in extenso sobre la forma en la que debían interpretarse determinadas disposiciones del derecho guatemalteco, y particularmente, las disposiciones de la LGE y el RLGE.

[...]

[353] Por la forma en que se desarrollaron el debate y las audiencias y por los temas que se plantearon, este proceso semejaba más un arbitraje comercial internacional que uno de inversión. Por ello, el Tribunal de manera expresa solicitó a las Partes un pronunciamiento sobre las supuestas violaciones al Tratado que se habían dado, en qué consistían y mediante cuáles actos específicos se habían concretado. En su Escrito Posterior a la Audiencia, la Demandante, si bien vuelve a citar las normas del Tratado y a referirse a decisiones de otros tribunales internacionales, se siguió centrando en las diferencias de interpretación, según el derecho guatemalteco, de los temas tantas veces mencionados en el presente laudo. El Tribunal reitera que más allá de etiquetar las conductas de la CNEE como violatorias del Tratado, no planteó la Demandante una controversia bajo el Tratado y el derecho internacional, sino un debate técnico, financiero y jurídico sobre disposiciones del derecho del Estado demandado.

[...]

[355] En resumen, la Demandante pide al Tribunal que actúe como juez de instancia para definir el debate que se dio de acuerdo con el derecho guatemalteco y que le conceda la razón en su interpretación de cada uno de los asuntos debatidos, de manera que, a partir de esa decisión de este Tribunal Arbitral, la Demandante pueda construir y reclamar una violación de los estándares del Tratado.

[356] Para el Tribunal es evidente que la controversia planteada por la Demandante en este arbitraje versa sobre derecho nacional guatemalteco y que la simple mención del Tratado y la calificación de las actuaciones de Guatemala que hace Iberdrola, conforme a los estándares de ese Tratado, no basta para que la controversia se convierta en una sobre "cuestiones reguladas"por el Tratado.

[357] Según se señaló, la Demandante no demostró que si su posición en cuanto a las diferencias de derecho local que originaron este conflicto fuera la correcta, la consecuencia sería que la Demandada vulneró el Tratado o el derecho internacional. Tal demostración es necesaria para que el CIADI pueda tener jurisdicción y el Tribunal competencia. Así parece reconocerlo la propia Demandante, quien afirmó que "... no se trata de demostrar elementos suficientes para que el Tribunal decida preliminarmente si hay o no una violación de las normas del Tratado (eso es cosa del fondo), sino que se trata de comprobar que los hechos alegados, de ser ciertos, podrían constituir una violación de las normas del Tratado".

[358] El debate de derecho internacional que se dio durante este proceso fue meramente teórico, referente a la procedencia de la aplicación a este caso de lo resuelto en algunos laudos que la Demandante citó, así como sobre el contenido de los estándares de protección. Sin embargo, en definitiva, no hay en los escritos de la Demandante una conexión entre los hechos que alega y los estándares que invoca, ni una materialización del hecho o hechos de imperio que, a la luz del derecho internacional, podrían haber sido considerados violaciones de sus derechos según el Tratado.
English translation :
[349] As may be observed in the various submissions and pleadings provided throughout this arbitration, the Claimant’s foundation for the alleged violation of the Treaty standards by Guatemala is based on the discrepancies between EEGSA and the CNEE during the tariff-setting process for the 2008-2013 term on the interpretation of the norms of the Republic of Guatemala and the economic formulas to calculate the VAD. Beyond labelling the Respondent’s actions, the Claimant does not present a clear and specific reasoning as to which are, in its view, the acts of imperium of the Republic of Guatemala which, under international law, could amount to Treaty violations. In the Claimant’s pleadings, the Tribunal can only find a discussion about domestic law, which it has no competence to resume and resolve again as if it were a court of appeals. [...]
[350] It is clear to the Tribunal, as will be explained below, that an international tribunal does not become competent merely because one of the parties to the proceedings states that there has been a breach of international law. In a case as the one raised by the Claimant in this arbitration, the Tribunal would only have jurisdiction had the Claimant demonstrated that the facts it alleged, if proven, could amount to a Treaty violation. As analyzed below, the Claimant did not demonstrate this basic premise and simply submitted a dispute about Guatemalan domestic law for the Tribunal’s consideration.
[351] As stated by the Tribunal and reflected on the record, beyond the Claimant’s characterization of the disputed matters, the essential part of these matters and, especially, of the disputes that the Claimant asks the Tribunal to resolve, concern Guatemalan law. In the various written submissions filed during the arbitration, the Parties discussed broadly how certain provisions of Guatemalan law, and particularly, of the LGE and the RLGE, should be interpreted.
[...]
[353] Based on how the discussion and the hearings developed and the matters that were raised, this proceeding resembled an international commercial arbitration rather than an investment one. Thus, the Tribunal expressly requested a statement from the Parties on the alleged violations of the Treaty that had taken place, what they entailed and through which specific actions they had materialized. In its Post-Hearing Brief, the Claimant, while again quoting the provisions of the Treaty and referring to the decisions of other international tribunals, continued focusing on the differing interpretations, according to Guatemalan law, of the matters repeatedly mentioned in the present award. The Tribunal reiterates that beyond labelling the CNEE's conduct as a Treaty violation, the Claimant did not bring a dispute under the Treaty and international law, but rather a technical, financial and legal debate on the legal provisions of the respondent State.
[...]
[355] In summary, the Claimant asks the Tribunal to act as an instance judge to settle the debate that took place in accordance with Guatemalan law and that it sides with the Claimant's interpretation of each of the disputed matters, such that, based on that decision of this Arbitral Tribunal, the Claimant may build and claim a violation of the Treaty standards.
[356] It is evident to the Tribunal that the dispute raised by the Claimant in this arbitration revolves around Guatemalan domestic law and that simply mentioning the Treaty and characterizing Guatemala's actions as Iberdrola has done, pursuant to the standards in that Treaty, is insufficient for the dispute to become one about "matters governed" by the Treaty.
[357] As was noted, the Claimant did not demonstrate that if its position with regard to the discrepancies on domestic law that gave rise to this conflict was correct, the consequence would be that the Respondent breached the Treaty or international law. Such demonstration is necessary for ICSID to have jurisdiction and for the Tribunal to be competent. The Claimant seems to acknowledge as much by stating that "... it is not about proving sufficient elements for the Tribunal to preliminarily decide whether or not there is a violation of the provisions in the Treaty (that is a question for the merits), but rather about verifying that the alleged facts, if true, could amount to a violation of the provisions in the Treaty".
[358] The debate on international law that took place during this proceeding was merely theoretical, related to the appropriateness of applying the findings of some awards that the Claimant cited to this case, as well as about the content of the protection standards. However, in sum, there is no connection in the Claimant's written submissions between the facts it alleges and the standards it invokes, nor there is an embodiment of the act or acts of imperium which, in light of international law, could have been considered as violations of its rights according to the Treaty.455

296.
The excerpts quoted demonstrate that having heard the evidence, the Iberdrola I tribunal decided that these claims were not capable of amounting to Treaty breaches and consequently did not fall within the ambit of the Treaty’s arbitration clause. Hence, the matter "definitively settled" in the Iberdrola I Award, to use the ICJ’s words, is the existence of jurisdiction pursuant to Article 11 of the Treaty over the same Treaty claims as the ones before this Tribunal.
297.
In spite of the content of the Iberdrola I Award just described, the Claimant contends that the findings in that decision were premised on the manner in which the Claimant had formulated its claims. According to the Claimant, the Iberdrola I tribunal "did not conclude that the factual matrix at the origin of the dispute could not give rise to treaty claims, but that, as formulated by Iberdrola, the claims in Iberdrola I were local law claims premised on the violation of local law with respect to which the tribunal lacked jurisdiction to make a ruling."456
298.
That contention is ill-conceived. As was already stressed, the Iberdrola I tribunal considered that the Claimant did not establish that the facts, as alleged, could amount to violations of the Treaty.457 More specifically, the tribunal observed that "in the Claimant’s written submissions there [was] no connection between the facts it alleged and the standards it invoked, nor did they point to the act or acts of imperium that, pursuant to international law, could have been characterized as violations of its rights under the Treaty."458 While the tribunal’s reasoning was based on a lack of "connection" between the facts and the treaty breaches involved, the conclusion was clear: the Claimant failed to show that the facts alleged could constitute breaches of the Treaty. The Iberdrola I tribunal’s finding was the result of an assessment of the factual matrix of the case. It was not based on the formulation of the claims. In any event, even if the Iberdrola I tribunal had been influenced by that formulation, that would make no difference to the outcome of the present proceedings, because the formulation of a claim is not a curable defect, and the claims are the same treaty claims in both cases, as was established earlier.
299.
For the avoidance of doubt, the Tribunal emphasizes that its conclusion is in conformity with the ICJ decisions in Nicaragua v. Colombia and Costa Rica v. Nicaragua.
300.
In its 2016 judgment in the first case, the Court considered and rejected Colombia’s objection to Nicaragua’s claim based on the alleged res judicata effect of the Court’s prior 2012 judgment in which the Court determined that it was "not in a position to delimit" a continental shelf boundary.459 The Court framed the issue before it as a question of admissibility in the following terms:

In particular, the Court will determine whether subparagraph 3 of the operative clause of its 2012 Judgment must be understood as a straightforward dismissal of Nicaragua's request for lack of evidence, as Colombia claims, or a refusal to rule on the request because a procedural and institutional requirement had not been fulfilled, as Nicaragua argues.460

301.
The clear implication of this passage was the Court's acceptance that if it had earlier considered the claim and dismissed it for lack of evidence, res judicata would bar a second attempt by Nicaragua to seek adjudication. If, on the other hand, the Court had previously refused to rule on the request because a procedural and institutional requirement had not been fulfilled, res judicata would not bar the second submission.
302.
Seeking to establish the meaning of the 2012 judgment, the Court focused its analysis on whether or not Nicaragua had previously put the Court into the position of being able to adjudicate Nicaragua's claims namely by inquiring whether Nicaragua had complied with the precondition in the United Nations Convention on the Law of the Sea ("UNCLOS") for seeking a delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nautical miles of the Nicaragua coast. The Court looked beyond the dispositif of the 2012 Judgment and reviewed the reasoning in order to ascertain whether it was res judicata.
303.
This review led the Court to conclude that it had dismissed Nicaragua's claim in 2012 "because the latter had yet to discharge its obligation, under paragraph 8 of Article 76 of UNCLOS, to deposit with the CLCS the information on the limits of its continental shelf beyond 200 nautical miles required by that provision and by Article 4 of Annex II of UNCLOS".461 In other words, "delimitation of the continental shelf beyond 200 nautical miles from the Nicaraguan coast was conditional on the submission by Nicaragua of information on the limits of its continental shelf’.462 This information had not been provided in 2012, with the result that "[t]he Court thus did not settle the question of delimitation in 2012, because it was not, at that time, in a position to do so".463 In the meantime, in 2013, Nicaragua had provided the missing information. Consequently, the Court considered that "the condition imposed by it in its 2012 Judgment in order for it to be able to examine the claim of Nicaragua [...] ha[d] been fulfilled in the present case", i.e. in the proceedings leading to the 2016 judgment.464
304.
This makes clear that the Court accepted Nicaragua's submission of the continental shelf delimitation in 2016 because it could not have considered it in 2012 due to Nicaragua's non-compliance with UNCLOS' precondition to the submission of such a claim. Having complied with that condition precedent, Nicaragua's right to have its claim heard by the Court was perfected. In other words, the Court was now put into a position where it could resolve what it could not resolve in the earlier proceeding.
305.
The same kind of analysis is made in the 2018 Judgment in Costa Rica v. Nicaragua. Costa Rica’s contention that the earlier judgment of the Court had res judicata effect was rejected because the issue that was put before the Court in the later case had been excluded from the Court’s consideration in the earlier 2015 decision. Indeed, a review of that earlier judgment showed that "no decision was taken by the Court in its 2015 Judgment on the question of sovereignty concerning the coast of the northern part of Isla Portillos, since this question had been expressly excluded. This mean[t] that it [was] not possible for the issue of sovereignty over that part of the coast to be res judicata."465
306.
The situations leading the Court to deny the application of res judicata in these two judgments stand in stark contrast to the present case. Indeed, there is no contention in this arbitration that there was an unsatisfied condition precedent to the submission of the Treaty claims to ICSID such that the Iberdrola I tribunal could not have been seised of the Treaty claims now before this Tribunal (as in Nicaragua v. Colombia).466 Nor did the Iberdrola I tribunal hold that part of the international law claims were carved out from its consideration and therefore left open for adjudication by the present Tribunal (as in Nicaragua v. Costa Rica). Hence, in reliance on the Court’s jurisprudence, the only valid conclusion in the present circumstances is that the binding force of the Iberdrola I Award established by Article 53 of the ICSID Convention must be recognized.

(iii) Conclusion on res judicata

307.
For these reasons, the Tribunal finds that the Iberdrola I Award definitively settled the question as to whether the claims brought in the present arbitration relate to "matters governed by the Treaty" under Article 11(1). The Iberdrola I tribunal’s decision was that they did not, and as a result, it determined that it had no jurisdiction ratione materiae. Having been definitively settled in the Iberdrola I Award, this Tribunal cannot revisit jurisdiction. It must therefore deny jurisdiction over the present claims.
308.
The Tribunal has reached this conclusion on the basis of international law, but notes that it is not inconsistent with Swiss law. In the Tribunal’s view, the Iberdrola I award has the same res judicata effect in Switzerland as it has under international law.
309.
While the Tribunal has noted the Claimant’s assertions of unfairness and denial of justice, the fact is that res judicata pursues an important policy objective, namely, avoiding that the same issues be litigated over and over again and thereby ensuring legal certainty. As noted by the ICJ, "the principle of res judicata [...] protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal".467 Similarly, the ILA writes that "[t]he rationale for the res judicata doctrine finds expression in two Latin maxims: Interest reipublicae ut sit finis litium ('it is in the public interest that there should be an end of litigation’) [and] Nemo debet bis vexari pro una et eadem causa ('no one should be proceeded against twice for the same cause’)[…] The former is a matter of public policy, and the latter is a matter of private justice".468 All these objectives are relevant in international investment arbitration.
310.
The contrary solution would open the floodgates. It would put into question the finality of arbitral awards and threaten legal certainty, as dissatisfied investors could file their claims multiple times in the hope that a new tribunal would uphold jurisdiction. Obviously, decisions declining jurisdiction because of a failure to meet a procedural requirement or because the ground to deny jurisdiction was specific to the first tribunal, would not bar claimants from refiling the claim once the defect had been corrected. These exceptions to the res judicata authority of negative jurisdictional decisions provide the necessary safeguards to ensure access to justice and avoid unfairness.
311.
In light of this result, the Tribunal could end its inquiry here. However, because it is the basis of the counterclaim, the Tribunal will review the defenses linked to the fork-in-the-road clause.

d. Fork in the road

312.
The Respondent also contends that Article 11(2) of the Treaty is a fork-in-the-road clause, and that this fork in the road has been triggered not once, but twice by the Claimant. In addition, it argues, even if the Tribunal were to find that the fork in the road has not been triggered, that Article 26 of the ICSID Convention precludes the Claimant from bringing this UNCITRAL proceeding.
313.
The Claimant’s position is essentially that Article 11(2) is not a fork-in-the-road clause. Even if it was, that clause was not triggered by EEGSA’s domestic proceedings or by the Iberdrola I proceedings, and in any event, Article 26 of the ICSID Convention has no application here.
314.
To rule on this objection, the Tribunal must thus decide whether Article 11(2) is a fork-in-the-road provision (ii); if it was triggered (iii); and if Article 26 of the ICSID Convention precludes the present proceedings (iv). Before turning to these questions, the Tribunal will address the Claimant's preliminary argument that the Respondent's fork-in-the-road objection fails because of its alternative nature (i).

(i) The Claimant’s preliminary argument

315.
As a preliminary matter, the Claimant contends that, because the Respondent has formulated it in the alternative to its res judicata objection, the fork-in-the-road objection is premised on the fact that Iberdrola is presenting a different claim in this case than in prior cases. According to the Claimant, this disposes of the fork-in-the-road argument: "[i]f the claims in this arbitration are different from the ones submitted in the prior cases, Iberdrola cannot have exercised a via electa in relation to this dispute and claims."469
316.
The Respondent opposes this submission. It agrees that, if res judicata and fork in the road were equivalent concepts interpreted as the Claimant does, a fork-in-the-road clause could not give rise to an alternative objection. However, it is of the view that these concepts are not equivalent, nor should they be interpreted as the Claimant proposes.
317.
The Tribunal does not understand that the Respondent's fork-in-the-road objection is premised on the present claims being different from those submitted in prior cases. It understands the Respondent's position to be that the claims advanced in Iberdrola I are identical to the ones brought here. On this basis, the Respondent's primary objection is that the claims have already been decided and as such are precluded by res judicata. Alternatively, should the Tribunal reject this objection, it is the Respondent's submission that the Claimant is attempting to litigate the same dispute before a third forum in violation of Article 11(2) of the BIT.
318.
The Tribunal does not consider these alternative arguments to be incompatible. As addressed below, the concepts of res judicata and fork in the road are different and require different elements to be met.

(ii) Is Article 11(2) a fork-in-the-road provision?

319.
The Respondent submits that Article 11(2) of the Treaty is a fork-in-the-road clause, which provides that an investor of the other Contracting State may only have recourse to one forum to resolve a dispute that may arise with the host State under the Treaty. For Guatemala, this article provides for three alternative and at the same time exclusive dispute settlement options, which is shown by the use of the expression "at the choice of the investor" and of the conjunctive "or".470
320.
The Claimant disputes that Article 11(2) contains a fork-in-the-road clause. It contends that this provision "does not establish that the choice of one or the other of the mechanisms by the investor shall be final" and thus "does not prevent an investor that had recourse to an infructuous via to go to a second forum to have its claims decided."471 The Claimant explains in this context that investment treaties usually resort to one of two limiting techniques: they either require the investor to choose a method of dispute resolution ab initio and estop it from subsequently relitigating the dispute in another forum, or they allow the investor to pursue all domestic remedies, but once the investor chooses investment arbitration, it must waive its rights to pursue another form of dispute settlement.472 It notes that neither of these techniques originates from a general principle of international law, so in order to make the investor’s choice irrevocable, an express rule is needed. However, Article 11 contains no such express rule. Finally, Iberdrola draws attention to the treaty practice of both Contracting States, asserting that they later expressly so stated when they intended the choice of forum to be irrevocable.
321.
To interpret Article 11(2), the Tribunal must resort to the rules of treaty interpretation contained in Articles 31 and 32 of the VCLT. Accordingly, it must interpret the Treaty in good faith giving the terms their ordinary meaning in their context and in light of the object and purpose of the Treaty.473
322.
In doing so, it must consider other agreements, instruments, or rules specified in paragraphs 2 and 3 of Article 31, as well as any special meaning the Contracting Parties intended to give to a term (Article 31(4)). Under Article 32, the Tribunal may consider supplementary means of interpretation to confirm the meaning of the Treaty resulting from the application of the rules just described, or to determine its meaning if these rules lead to a result that is ambiguous or obscure, or manifestly absurd or unreasonable.
323.
The relevant language is found in Article 11(2) of the Treaty and reads as follows:

Si la controversia no pudiera ser resuelta de esta forma en un plazo de seis meses a contar desde la fecha de notificación escrita mencionada en el párrafo 1, la controversia podrá someterse, a elección del inversor :

a) a los tribunales competentes de la Parte Contratante en cuyo territorio se realizó la inversión; o

b) a un tribunal de arbitraje ad hoc establecido de acuerdo con el Reglamento de Arbitraje de la Comisión de las Naciones Unidas para el Derecho Comercial Internacional; o

c) al Centro Internacional de Arreglo de Diferencias Relativas a Inversiones (C.l.A.D.I.) [...] (Emphasis added)
English translation :
If the dispute cannot be resolved in this manner within a term of six months from the date of written notice mentioned in paragraph 1, the dispute may be submitted, at the choice of the investor :
a) to the competent courts of the Contracting Party in whose territory the investment was made; or
b) to an ad hoc arbitral tribunal established in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law; or
c) to the International Centre for Settlement of Investment Disputes (ICSID) [...]. (Emphasis added)

324.
Looking first at the ordinary meaning of the terms, it is clear that the text gives the investor a choice. It is equally clear that it does not expressly say whether an investor who has made use of the right to choose with respect to a given dispute can later make another choice or not for the same dispute. In other words, it does not explicitly state whether the choice afforded is revocable or irrevocable. Yet, the ordinary meaning of the terms "a elección del inversor" and of the conjunction "o" implies that the investor must choose one or the other mechanism, as opposed to two or three.
325.
According to the Dictionary of the Spanish Royal Academy, the term "elección" ("choice") is defined as the action and effect of choosing ("elegid").474 The Dictionary defines the verb "elegid" as "[e]scoger o preferir a alguien o algo para un fin",475 i.e. to choose or prefer someone or something for a purpose. The term "escoger" does not help much, as it is a synonym of "elegir", but the term "preferir" (to prefer) is telling, as it implies a selection whereby one option is preferred to others, which are not selected. The use of the disjunctive conjunction "or" ("o") confirms and reinforces the alternative nature of this choice, as it "denotes a difference, separation or alternative between two or more persons, things or ideas", or is used "before each of two or more opposed terms".476 Or in simpler terms, "or" is not "and". Hence, the Tribunal comes to the conclusion that the ordinary meaning of the words signifies that, once an investor has made a choice, he cannot make another one for the same dispute. The right to choose a forum afforded by the Treaty has been exercised and is thereby exhausted. While the clause does not expressly say that the choice cannot be renewed or is irrevocable, that is the unavoidable consequence of the words used.
326.
The context of the provision does not lead to a different conclusion. In fact, there is not much that the Tribunal can turn to as context: there are no other pertinent Treaty clauses; the Treaty has no annexes; nor have the Parties pointed to any instruments that might qualify as context under Article 31(2) of the VCLT, or that must be taken into account under Article 31(3) of the VCLT. The Tribunal is thus left with the location of the provision and the Preamble. In terms of its location, Article 11(2) is part of the clause governing dispute resolution between an investor and the Contracting Party, but this does not assist in characterizing the choice of forum given to the investor. Nor does the Preamble provide useful guidance: it is limited to stating that the Contracting Parties "[w]ish[] to intensify economic cooperation in the mutual benefit of both countries"; "[i]ntend[] to create favorable conditions for investments made by investors of each of the Contracting Parties in the territory of the other", and "[r]ecogniz[e] that the promotion and protection of investments in accordance with this Agreement stimulates initiatives in this field."477
327.
While it does not strictly qualify as context, the Claimant argues that the Contracting Parties’ treaty practice reveals that, when they intended a choice to be irrevocable, they provided so expressly. It stresses that both Spain and Guatemala have signed treaties including express language of irrevocability but did not do so in this case. This argument does not carry the Claimant very far. It is true that the clause could have been written in stronger terms, but it is indisputable that the provision uses the words "or" and "at the choice of the investor". The fact that this Treaty included no explicit language as to the irrevocable nature of the choice once made does not deprive the existing words of their ordinary meaning, and the Tribunal does not consider that it was necessary to add mention of irrevocability 'for greater certainty’ in order to confirm what is already clear from the text as drafted.
328.
Moreover, this reading of Article 11(2) is consistent with the object and purpose of the fork-in-the-road clause. The Parties generally agree - correctly so - that such object and purpose is to "avoid [...] the duplication of proceedings and the risk of conflicting decisions."478 As noted by Douglas, "[t]he rationale underpinning the 'fork in the road’ provision in investment treaties is clearly the avoidance of multiple proceedings in multiple fora in relation to the same investment dispute. In more colloquial terms, it is designed to prevent the investor having several bites at the cherry."479 The Claimant rightly emphasizes that this rationale applies only to a 'true’ fork-in-the-road provision, i.e., when there is "a clear and unequivocal manifestation of will" from the contracting parties that the choice of forum is irrevocable.480 The Tribunal concurs in the sense that the interpretation of the Treaty under the rules of the VCLT must show an intent to provide only one choice for a given dispute. That is precisely the result of the interpretation exercise just conducted.
329.
That being said, the fork-in-the-road clause at Article 11(2) is only triggered when the investor attempts to submit the same "dispute" ("controversia") to second forum.

(iii) What type of disputes trigger the fork-in-the-road clause? Has the fork-in-the-road provision been triggered?

330.
The Parties appear to agree that the essential criterion to assess whether the fork-in-the-road clause is triggered is whether the investor has submitted the "same dispute" to more than one forum. They disagree, however, on the test to determine the identity of the dispute.
331.
Relying inter alia on H&H and Pantechniki, the Respondent submits that the dispute need not meet the triple identity test; it suffices that "the respective claims share the same fundamental basis", specifically that the dispute is based on the same facts and subject matter481 and the relief sought is the same in both proceedings.482 For Guatemala, the Claimant has already submitted the same dispute, arising from the same factual matrix, to two other fora, i.e., to the Guatemalan courts and to ICSID. As a result, it is precluded from resubmitting this dispute before this UNCITRAL Tribunal.
332.
By contrast, the Claimant contends that the clause can only be triggered by treaty-based disputes, because the "dispute" must be "regarding matters regulated by this Agreement", as required by Article 1 1(1).483 It thus argues that neither the domestic proceedings initiated by EEGSA nor Iberdrola I triggered the application of the clause. The Claimant further contends that, for the fork in the road to be triggered, the dispute must meet the triple identity test. According to the Claimant, there was no identity of parties or cause of action between Iberdrola I and the domestic proceedings.
333.
The Tribunal agrees with the Claimant that the term "dispute" in Article 11(2) must be read in conjunction with the definition given in Article 11(1). Thus, Article 11(2) only deals with disputes regarding matters governed by the Treaty ("respecto a cuestiones reguladas por el presente Acuerdo"), and only these disputes trigger the fork-in-the-road clause. Consequently, the fork-in-the-road provision has not been triggered by EEGSA’s domestic litigations. Those litigations did not involve claims under the Treaty, they dealt with issues of national law.
334.
Whether the clause was triggered by the Iberdrola I arbitration is a different question. The Claimant denies it because the Iberdrola I tribunal decided that the dispute did not relate to matters governed by the Treaty and thus did not fall under the scope of Article 11, which necessarily means that it cannot trigger the fork in the road in Article 11(2). The Claimant further contends that the dispute must meet the triple identity test. For the same reason, the Claimant submits that there is no identity of causes of action between the present claims and those brought in Iberdrola I. As noted above, the Respondent argues that it is sufficient for both disputes to share the same fundamental basis, which is the case here.
335.
The Tribunal can dispense with deciding which test should apply to the identity of dispute in the context of the fork in the road. Indeed, it has already affirmed that the more stringent test, the triple identity test, was fulfilled. Indeed:

i. It is undisputed that there is identity of parties;

ii. There is also identity of petitum: in both proceedings, the Claimant has requested a declaration that Article 3 of the Treaty had been breached, together with compensation;484

iii. There is finally identity of cause of action. It is evident from the Claimant's pleadings in Iberdrola I that the Claimant invoked breaches of the Treaty before that tribunal. In reality, the Claimant concedes this point when it states that "[e]ven though in 2008 Iberdrola presented its claims in good faith as treaty claims, the tribunal in Iberdrola I ultimately considered they were not."485

336.
The fact is that the Claimant has already submitted a treaty-based dispute to an ICSID tribunal (option Art. 11(2)(c) under the Treaty) and is now attempting to resubmit the same treaty dispute to this UNCITRAL Tribunal (option Art. 11(2)(b) under the Treaty). In other words, the Claimant has already made one forum choice for this dispute and now seeks to make another choice for the same dispute. This course of action contradicts the purpose of Article 11(2), which the Claimant expressly acknowledges is "to avoid parallel litigation on the same investment dispute and, thus, contradictory decisions".486 The fact that the Iberdrola I tribunal found that the claims were domestic law claims and not treaty claims does not change the fact that the Claimant invoked the Treaty as the basis for its claims. Nor does it alter the analysis conducted above, where the Tribunal concluded that the two arbitrations involve the same dispute.
337.
For these reasons, the Tribunal finds that the fork in the road contained at Article 11(2) was triggered by the submission of Iberdrola I to ICSID arbitration. The Claimant already chose one forum to submit the treaty dispute now before this Tribunal. Consequently, under the terms of Article 11(2), it is prevented from now resorting to this UNCITRAL Tribunal.

(iv) Article 26 of the ICSID Convention

338.
Having reviewed the Parties’ submissions on Article 26 of the ICSID Convention, the Tribunal does not find that it assists it in determining the Respondent’s fork-in-the-road objection, or its jurisdiction in general. That said, the Tribunal will address the Parties’ arguments for the sake of completeness.
339.
The Respondent contends that, even if Article 11(2) of the Treaty were not a fork-in-the-road provision, Article 26 of the ICSID Convention would preclude the Claimant from bringing this UNCITRAL arbitration. The Tribunal understands the Respondent’s argument essentially to be that Article 26 sets out an exclusive forum for the resolution of investment disputes, such that if an investor chooses to arbitrate its dispute under the ICSID Convention, it waives its right to seek another remedy before another forum, and the Claimant waived its right to submit its dispute before this UNCITRAL tribunal because it consented to ICSID arbitration in Iberdrola I.487
340.
Article 26 reads as follows:

Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a conditions of its consent to arbitration under this Convention. (Emphasis added)

341.
Pursuant to its own terms, Article 26 applies when the parties have consented to ICSID arbitration. Unless stated otherwise, such consent is exclusive of any other remedy, including domestic litigation and non-ICSID arbitration. As Schreuer explains, this means that "once consent to ICSID arbitration has been given, the parties have lost their right to seek relief in another forum, national or international, and are restricted to pursuing their claim through ICSID."488
342.
Importantly, the effect of Article 26 only "operates from the moment of valid consent."489 In the context of a treaty arbitration, this requires an offer of arbitration from the respondent State contained in the relevant treaty, and an acceptance from the claimant investor, usually given when filing for arbitration with ICSID. That said, as Schreuer comments, consent will only be deemed valid if the Secretary-General does not refuse to register the request for arbitration because it is manifestly outside the Centre's jurisdiction or if the arbitral tribunal does not render a decision of lack of jurisdiction:

Art. 26 applies from the moment of consent [...]. If ICSID arbitration has been instituted, there will be a finding by the Secretary-General in accordance with his or her screening power under Art. 36(3) or a decision on jurisdiction by the tribunal under Art. 41. If the Secretary-General has found that, because of a lack of consent, the dispute is manifestly outside the jurisdiction of the Centre or if the tribunal has determined that the Centre does not have jurisdiction because there is no valid consent, Art. 26 does not apply and other remedies may be pursued.490

343.
In this case, the Iberdrola I tribunal declined its jurisdiction (and the ad hoc annulment committee refused to annul that award). By declining jurisdiction, the Iberdrola I tribunal found that there was no valid consent to ICSID arbitration, because the Claimant's acceptance did not match the Respondent's offer to arbitrate. As a result, Article 26 cannot preclude the Claimant from seeking other remedies. Whether or not the investor can bring its claim to another forum will depend on the terms of the relevant treaty (for instance, whether it provides for a fork in the road), or on whether a new claim is barred by res judicata. The Tribunal thus agrees with the Claimant that "Article 26 does not resolve the parties' dispute in the present case"; "[r]ather[,] the case must be analysed through the prism of the correct principles of res judicatd’,491 which the Tribunal has done above.

e. Objection based on Article 53 of the ICSID Convention

344.
In the alternative, the Respondent contends that, by bringing this arbitration, the Claimant has breached Article 53 of the ICSID Convention, with the result that this Tribunal has no jurisdiction to hear the Claimant's claims. As the Tribunal has already decided that it lacks jurisdiction, it will only briefly address this objection, in particular because it is closely linked to res judicata.
345.
The Respondent argues that, as a result of Article 53, "the forms of recourse established in the ICSID Convention are exclusive of each other [and] do not include the possibility of appealing the factual or legal findings of an ICSID tribunal".492 For the Respondent, the Claimant has exhausted the available remedies against the Iberdrola I award by seeking the annulment of this award before the ad hoc committee.493 By initiating this arbitration and requesting this Tribunal to reopen the jurisdictional findings of the Iberdrola I tribunal, says Guatemala, the Claimant has breached Article 53 of the ICSID Convention, with the result that this Tribunal lacks jurisdiction.494
346.
The Claimant denies that Article 53 applies in the case at hand. Relying on Schreuer’s commentary to Article 53 of the ICSID Convention,495 the Claimant submits that "[i]n the absence of a decision on the merits from the Iberdrola I tribunal, Article 53 cannot be used by Guatemala to prevent Iberdrola’s treaty claims being heard by this tribunal".496
347.
Article 53 of the ICSID Convention reads in pertinent part as follows:

(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.

348.
The first part of Article 53(1) states that an ICSID award is final and binding. As was stressed earlier, this statement is the basis for the binding force of ICSID awards and, hence, for its res judicata authority.497 Accordingly, to the extent that the Respondent’s objection relies on the binding nature of ICSID awards, it calls for the same conclusion as that reached with regard to the res judicata objection.
349.
The Respondent appears, however, to rely on the second part of the first sentence of Article 53(1), pursuant to which ICSID awards "shall not be subject to any appeal or to any other remedy except those provided for in [the ICSID] Convention." The Respondent’s submission seems to be that the Iberdrola I Award was already subject to the remedy allowed by the ICSID Convention, namely, annulment under Article 52, and that by requesting this Tribunal to revisit the Iberdrola I tribunal’s jurisdictional decision, the Claimant is impermissibly attempting to bring a new recourse against the Iberdrola I Award. Relying on RSM, the Respondent submits that this would breach Article 53 of the ICSID Convention.
350.
To the extent that this is the Respondent’s argument, the Tribunal cannot agree. This arbitration is not an appeal or recourse against the Iberdrola I Award. It is a separate proceeding over which the Tribunal lacks jurisdiction, because it raises claims identical to those presented in the Iberdrola I arbitration.