Prof. MMag. Dr. August Reinisch, LL.M.
Department of European, International and Comparative Law
Section of International Law and International Relations
University of Vienna
Schottenbastei 10-16
A-1010 Vienna
Austria
Tel.: +43 1-4277/35307
Fax: +43 1-4277/9353
Email: august.reinisch@univie.ac.at

Prof. Philippe Sands QC
Matrix Chambers
Griffin Building
Gray's Inn
London, WC1R 5LN
United Kingdom
Phone: +44 20 7404 3447
Fax: +44 20 7404 3448
Email: philippesands@matrixlaw.co.uk

Prof. Dr. Karl-Heinz Böckstiegel
Parkstr. 38
D-51427 Bergisch Gladbach, Germany
Tel.: +49 (0)2204 66268
Fax: +49 (0)2204 21812
Email: kh@khboeckstiegel.com

On 18 June 2018, the Tribunal issued Procedural Order No. 6 ("PO-6") Regarding the Procedure After the Hearing. In addition to setting a timetable for the further submissions, PO-6 ruled as follows:

2.1 By 27 August, 2018, the Parties shall simultaneously submit the English-language version of their Post-Hearing Briefs, Limited to a maximum of 50 pages (double-spaced) in length and in font Times New Roman 12, containing the following: 2.1.1. Any comments they have regarding issues raised at the Hearing;

2.1.2. In separate sections of the brief, any comments the Parties have regarding each of the following questions of the Tribunal (which are without prejudice as to the final relevance given by the Tribunal to such questions and the comments received):

a) What, if any, is the application and effect in this case, situated as it is in the field of environmental protection, of the " margin of appreciation enjoyed by national regulatory agencies when dealing with public policy determinations " (ICSID Case No. ARB 10/7, Philip Morris v Uruguay, Award, 8 July 2016, § 388, [CL-0178]). [sic – RL-0088]

b) In a short chart, the Parties are invited to identify what they consider to be, in comparison to the present case, the common denominators and main differences of the factual and legal background in the following cases:

- Charanne B.V. and Construction Investments S.A.R.L. v. Kingdom of Spain (SCC Case 062/2012), Final Award, January 21, 2016, and dissenting opinion by Prof. Guido S. Tawil, 21 December 2015 [CL-0030 / RL-0049]

- Eiser Infrastructure Limited and Energia Solar Luxembourg S.Á R.I. vs. The Kingdom of Spain, ICSID Case No. ARB 13/36, Award of 4 May 2017 [CL-0148 / BQR-87 / RL-0077];

- Isolux Infrastructure Netherlands, B.V. v. the Kingdom of Spain, Arbitration SCC V2013/153, Award, 12 July 2016 [RL-0004];

- Novenergia II – Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. The Kingdom of Spain (SCC Arbitration 2015/063), Final Award, 15 February 2018 [CL-0213]; and

- Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018 [CL-0220].

c) What, if any, is the stand-alone impact of (1) Royal Decree 1565/2010 and Royal Decree Law 14/2010 (considered together), (2) Law 15/2012, and (3) the subsequent measures (taken together) on Claimants' overall damages claim?

50. For the foregoing reasons, the Claimants respectfully request that the Arbitral Tribunal (i) admit the present Reply Submission on Costs; and (ii) issue an Award as follows:

(i) DECLARING that the Arbitral Tribunal has jurisdiction to hear all claims submitted by OperaFund and Schwab under the Energy Charter Treaty and, consequently, rejecting each of the preliminary objections that the Respondent raised against the jurisdiction of the Arbitral Tribunal;

(ii) DECLARING that Respondent's actions and omissions with respect to OperaFund and Schwab's Investment in the PV subsector in Spain amount to breaches of Respondent's obligations under Part III of the Energy Charter Treaty, as well as under the applicable rules and principles of international law;

(iii) ORDERING Respondent to pay to OperaFund compensation in the amount of EUR 36,800,000 and to Schwab compensation in the amount of EUR 3,300,000 (amounts which may be increased to provide full compensation); or alternatively, an amount based on the alternative "But-for" scenario presented in Brattle Second Quantum Report of 13 December 2017, that is, to pay to OperaFund compensation in the amount of EUR 39,000,000 and to Schwab compensation in the amount of EUR 3,000,000;

(iv) ORDERING the Respondent to pay to the Claimants the entire costs of the arbitration and all costs incurred by the Claimants as detailed above in this Reply Submission on Costs, totaling EUR (Euro) 2,267,669.57, USD (United States Dollars) 525,000.00 and CHF (Swiss Francs) 26,850.15; and also including, in particular but without limitation, the legal costs incurred by the Claimants in order to address the jurisdictional objections raised by the Respondent and the related intervention of the European Commission as amicus curiae in the present proceedings [footnote: Petition (iv) updated with respect to the Prayer for Relief included in the Claimants' First PHB (which did not include the Claimants' incurred costs)]

(v) ORDERING Respondent to pay to OperaFund and Schwab pre- and post-award interest accrued on all amounts claimed, compounded monthly, until full payment thereof, at the rates specified by OperaFund and Schwab (1.59% compounded monthly for pre-award interest; and 3.59% compounded monthly for post-award interest);

(vi) DECLARING that the Arbitral Tribunal's Award is made net of all taxes and/or withholdings, and ORDERING Spain to indemnify Claimants for any tax liability or withholding that may be imposed in Spain, Malta or Switzerland, in relation to the compensation awarded in the Tribunal's Award; and

(vi) ORDERING any such further relief as the Arbitral Tribunal may deem appropriate.⁶

1477. In light of the arguments expressed therein, the Kingdom of Spain respectfully requests the Arbitral Tribunal to:

a) declare its lack of jurisdiction to hear the claims of the Claimants, or if applicable their inadmissibility, in accordance with what is set forth in section III of this Document, referring to Jurisdictional Objections;

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

c) Secondarily, to dismiss all the Claimants' claims for damages, as said Claimants are not entitled to compensation, in accordance with section VI of this Document; and

d) Order the Claimant to pay all costs and expenses derived from this arbitration, including ICSID administrative expenses, arbitrators' fees, and the fees of the legal representatives of the Kingdom of Spain, their experts and advisers, as well as any other cost or expense that has been incurred, all of this including a reasonable rate of interest from the date on which these costs are incurred until the date of their actual payment.

1478. The Kingdom of Spain reserves the right to supplement, modify or complement these pleadings and present any and all additional arguments that may be necessary in accordance with the ICSID rules of arbitration, procedural orders and the directives of the Arbitral Tribunal in order to respond to all allegations made by the Claimant in regards to this matter.

223. In view of the arguments put forward, the Arbitral Tribunal is respectfully requested to:

a) Declare its lack of jurisdiction to hear the Claimants' claims;

b) Secondarily, dismiss the Claimants' claims on the merits, since the Kingdom of Spain has not violated the ECT;

c) Secondarily, dismiss all claims for compensation from the Claimants, as they do not have the right to any compensation; and

d) Order the Claimants to pay all costs and expenses derived from the arbitration, all updated at a reasonable interest rate, from the date on which the costs are incurred until the day on which they are paid.

24. Accordingly, the Respondent respectfully requests that the Tribunal grant an award pursuant to Article 61(2) of the ICSID Convention ordering that the Claimants bear the costs of this arbitration, as well as the Respondent's costs for legal representation, in the amount of EUR 1,541,677.39. The Respondents [sic] reserves the right to seek additional costs arising subsequent to the filing of the Statement of Costs.

24.[sic] Further, the Respondent submits that it should not be liable for any of the Claimants' arbitration or representative costs.

25. Finally and in the alternative, should the Tribunal render an award condemning Spain to pay in whole or in part, the costs of this procedure, the Respondent respectfully requests that the Tribunal: i) excludes from Claimants' Submission of costs realted [sic] to "other expesnes[sic]" and ii) reduces Counsel for Claimants' fees to a reasonable amount.

26. The Respondent expreslly[sic] reserves its right to submit further arguments in this regard, if it deems it necessary according to the Procedural Orders, the ICSID Convention, and the Arbitration Rules applicable to this case.¹⁰

- The Spanish Constitution of 1978 : This is the supreme Act of the Spanish legal system, which establishes the organisation of the public authorities, their institutional and territorial structure, and regulates the essential aspects of the rights and duties of citizens.

- Act : is a written rule which emanates from legislative power. Two kinds of Acts can be distinguished:

• Organic Acts : those reserved for the regulation of certain matters provided for in the Constitution (Fundamental Rights and Public Liberties, general electoral system, among others). An absolute majority of the Congress of Deputies is required for their approval.

• Ordinary Acts : these regulate matters not reserved by the Constitution to an Organic Act. A simple majority of the Congress of Deputies is sufficient for their approval.

- Royal Decree-Act [Royal Decree-Law] this is a regulation with force of Law whereby the Government is authorised by the Constitution to approve them in situations of extraordinary need or urgency. The approval of a Royal Decree-Act is subject to strict conditions, controls and limits and its subsequent parliamentary validation.

- Royal Decree : a Royal Decree is a regulatory standard that emanates from the Government. It complements or implements the Acts and is hierarchically inferior to them. It can regulate within the authorisations granted by the Act and cannot breach the Law.

- The Ministerial Order : regulation emanating from one or several ministerial Departments. Within the energy framework, the most frequent type is a Ministerial Order emanating from the Ministry of Industry, Energy and Tourism.

[…] Resolutions, meanwhile, are not regulations but decisions with a lower rank than Ministerial Order which emanate from competent bodies of the Administration, involving technical content.³⁷

(i) Right to receive a Regulated Tariff for an unlimited period of time (Article 24(1)).

(ii) Right to sell the full net amount of electricity produced (Article 17(b)).

(iii) Right to not be affected by future revisions of the regulatory framework (Article 44(3)).

(iv) Right to receive a feed-in remuneration scheme annually updated in accordance with general CPI less 0.25 % until the end of 2012 and less 0.50 % onwards (Article 44(1)).

(v) Right to priority access to the transmission and distribution grid and energy dispatch priority (Article 17(e) and Annex XI(3)).

(vi) Right to receive a reactive energy supplement for the maintenance of certain stipulated power factor values (which was established at 0.082954 Euro/kWh) (Article 29(1)).¹⁰¹

a) El Paso was constructed (and always conceived) as a 100 kW facility. Thus, Deutsche bank always intended it to achieve the maximum remuneration for PV under the FIT regulations; and

b) ECO 3 was ultimately constructed as a 10MW facility (rather than as an aggregation of "smaller" 100 kW sub-facilities) (only) due to the fact that RD 661/2007 put an end to the difference in remuneration between "smaller" (≤ 100kW) and "not-small" (between 100 kW and 10 MW) PV plants. With RD 661/2007, there was no longer an economic incentive for "staggering" it into 100 kW sub-facilities.¹¹²

a) To act as an advisory body of the Administration in energy matters by issuing non-binding reports.

b) To participate, through proposals or non-binding reports, in the process of drafting general provisions on energy matters

c) To issue Notices on the development and implementation of Royal Decrees and Orders of the Ministry of Industry and Energy issued on energy matters, provided that these provisions authorise it to do so. These Notices on implementation are mandatory for the subjects affected by the scope thereof, once published in the Official State Gazette.

d) To manage the settlements of the Electrical System. It delivers 14 settlements for each financial year for those entitled to receive amounts from the SES.

e) To supervise and control the electricity sector including, among others:

• To supervise the suitability of the legal system of prices and conditions for the end consumers and publishing recommendations to adapt the supply prices to the obligations of public service and consumer protection.

• To manage the guarantee of origin system for electricity from renewable sources and high-efficiency cogeneration.

• To publish electricity final market prices, based on the information provided by the market operator and system operator.²⁷⁰

The Tribunal's jurisdiction arises exclusively from Articles 25 and 26 of the ICSID Convention and Article 26 of the ECT.³⁵³ The ECT is the constitutional treaty and, by definition, must prevail over other treaties in the Tribunal's analyses.³⁵⁴ This Tribunal will not be called upon to apply EU law.³⁵⁵

[t]he respect for the autonomy of the EU and its legal order is fully ensured in our case. First, the merits of the dispute should be resolved in accordance with the provisions of the ECT. Second, both Parties admit that there is no conflict between the ECT and EU law. The Tribunal has to decide if the abrogation of Regulatory Framework No. 1 applicable to the PV Plants, operated by the Respondent between 2010 and 2014, is compatible with Articles 10(1) and 13 ECT. All the awards that have analyzed such compatibility (Charanne, Isolux, Eiser and Novenergia ) have found no conflict between the ECT and EU law.³⁷⁵

This Tribunal is not called upon to rule on State Aid matters.³⁸³ A State Aid issue would only arise when the Tribunal renders an Award ordering Respondent to pay damages.³⁸⁴ Such an Award would not impair EC competencies in State Aid, as the EC will exercise those competencies when Respondent notifies the Award to it.³⁸⁵ In the event of disagreement of Respondent or Claimants with the eventual EC Decision on State Aid in relation to the Award, the CJEU will have the final word on this matter of EU internal law.³⁸⁶ Claimants noted that the Novenergia tribunal considered the EC Decision on State Aid to be irrelevant, and stated that the Antin and Masdar tribunals refused to accept evidence on it prior to closure of proceedings. The issue was not considered by the Charanne B.V. and Construction Investments S.A.R.L. v. Kingdom of Spain or Isolux Infrastructure Netherlands, B.V. v. the Kingdom of Spain tribunals.³⁸⁷

The Vattenfall Decision is irrelevant and neither invalidates or affects Respondent's position regarding the Achmea Judgment because the Vattenfall (1) proceeds from a radically flawed premise of international law and (2) did not address the relevance of Achmea.⁴⁰⁷ The Vattenfall tribunal simply ruled out the application of EU law to the assessment of its own jurisdiction, by means of a sui generis interpretation of Article 26(6) and 42(1) of the ICSID Convention, despite having concurred with the parties and the EC that EU law constituted International Law as defined in Article 38(1) of the Statute of the ICJ. This decision, thus, is internally inconsistent and unsupported by arbitral case law and doctrine.⁴⁰⁸ The Vattenfall tribunal's interpretation of Article 26(6) of the ECT and Article 42(1) of the ICSID Convention is contrary to the principles of treaty interpretation contained in Article 31 and 32 of the VCLT and to arbitral precedent, including Electrabel S.A. v. Hungary ; Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic ; AES Summit v. Hungary; Charanne; and Isolux,⁴⁰⁹ as well as Blusun and AES Summit, which considered that the principles of EU law are relevant as part of the applicable law.⁴¹⁰

The Vattenfall tribunal further erred by rejecting the application of EU Law as an interpretative parameter under Article 31(3)(C) of the VCLT and by rejecting a harmonious or systemic interpretation between the ECT and the relevant provisions of EU Law.⁴¹¹Vattenfall provided a partial and decontextualized interpretation of the ECT, in complete isolation from and without reference to EU Law or to the relevant provisions contained therein that apply to each EU Member State.⁴¹² This isolated and biased interpretation of the ECT is improper and renders the Vattenfall decision irrelevant to this Tribunal, which must start from the harmonious or systemic interpretation of the ECT and EU Law.⁴¹³

the ECT's historical genesis and its text are such that the ECT should be interpreted, if possible, in harmony with EU law. (…) [F]or three important legal reasons. The first derives from the ECT's genesis: it would have made no sense for the European Union to promote and subscribe to the ECT if that had meant entering into obligations inconsistent with EU law. The second derives from one of the ECT's objectives: it is an instrument clearly intended to combat anti-competitive conduct, which is the same objective as the European Union's objective in combating unlawful State aid. The third derives from the ECT's implicit recognition that decisions by the European Commission are legally binding on all EU Member States which are party to the ECT.⁴¹⁵

Article 30(3) VCLT provides that when all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59 VCLT, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. Article 30(4) and (5) of the VCLT specify that when the parties to the later treaty do not include all the parties to the earlier one, as between States parties to both treaties the same rule applies, provided that the provisions of Article 41 VCLT are respected.⁴²⁴

Article 16 Relation to Other Agreements

Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty,

(1) nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and

(2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favourable to the Investor or Investment.

Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States…, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.⁴⁵⁹

Since 2014, tribunals in Spanish ECT cases have analyzed and dismissed the intra-EU objection and none of these awards have been challenged by Respondent.⁴⁹⁷ The same is true in at least four other intra-EU ECT cases.⁴⁹⁸ These cases have not "ignored" the principle of primacy EU law.⁴⁹⁹ While there is no doctrine of precedent in investment arbitration, these decisions are compelling since they concern circumstances that are identical to the case at hand.⁵⁰⁰ In particular, (1) the ECT and EU law do not cover the same subject matter and there is no inconsistency or incompatibility between them, (2) the CJEU has no interpretative monopoly preventing tribunals from exercising jurisdiction over cases that would require them to apply EU law, and (3) EU law does not prevent investor-state arbitration of intra-EU disputes.⁵⁰¹ Regardless, however, it is well settled that an arbitral tribunal can and must apply EU law if the circumstances so require it.⁵⁰² The Achmea Judgment does not change the ECT landscape.⁵⁰³ There is no provision in either the EU Treaties, the European Energy Charter, or the ECT that proscribe the settlement of intra-EU disputes by investor-State arbitration.⁵⁰⁴ The EC's exercise in distinguishing an investment arbitration from a commercial arbitration is one of futility: a non-EU organ (a tribunal) can apply EU law to a legal relationship (public or private).⁵⁰⁵ The Tribunal has jurisdiction to hear a claim pursued by a Maltese investor against Spain under the ECT.⁵⁰⁶

[b]y defining area with reference to the agreement establishing the REIO, the ECT wants to make it clear that EU investors cannot bring claims against the Union. That aim would, however, be put into jeopardy if one were to allow EU investors to bring a claim against an EU Member State: Indeed, EU law is usually implemented by actions of the Member States, as the Union lacks - with very narrow exceptions mainly in the area of competition law - enforcement tools. EU investors, therefore, in most cases, will find national acts of execution of Union law, which they could challenge by bringing a claim against the EU Member State executing Union law, rather than against the Union itself. This can well be illustrated in the present case, where the measure contested by the Claimant constitutes the transposition of an obligation flowing from the First and Second Renewable Energy Directives.⁵⁵⁶