On April 17, 2021, Spain filed its Application for Annulment of the Award ("Annulment Application" or "Application"). In its Annulment Application, Spain requested, among other things: (i) a provisional stay of enforcement of the Award in accordance with ICSID Convention Article 52(5) and ICSID Arbitration Rule 54(2); and (ii) the continuation of the stay of enforcement until the ad hoc Committee renders its decision in this annulment proceeding.1
On May 28, 2021, the ad hoc Committee was constituted in accordance with ICSID Convention Article 52(3). Its members are Ms. Carita Wallgren-Lindholm, a national of Finland (President); Mr. Alvaro Rodrigo Castellanos Howell, a national of Guatemala; and Mr. Colm Ó hOisín SC, a national of Ireland ("ad hoc Committee" or "Committee"). All Members appointed by the Chairman of the Administrative Council.
On June 3, 2021, the Committee proposed holding the First Session by video conference (Zoom) indicating the dates when the Committee would be available; and providing a draft Procedural Order No. 1 to the Parties, to facilitate the Parties' discussions on procedural matters, which would serve as the agenda for the First Session. The Parties were invited to confer concerning the items addressed in the draft order and to modify the contents as they saw fit. By June 24, 2021, the Parties were to submit a joint proposal advising the Committee of (i) the Parties' agreements on procedural matters, (ii) the Parties' respective positions regarding any items on which they do not agree, and (iii) any additional matters that the Parties would like to discuss during the First Session. The Parties were also invited to confer and jointly propose by June 10, 2021 a schedule of written submissions; to consider whether an extension of the Rule 54(2) 30-day deadline was necessary and could be agreed between the Parties; and whether the Parties could agree on the language of their written submissions on the stay request.
After due deliberation, for the reasons to follow in due course in a fully reasoned Decision (as has been agreed by the Parties and reflected under Annex B and footnote 6 of PO 1) (the "Fully Reasoned Decision"), and taking into consideration Claimants' offer to "provide a binding and unconditional undertaking promptly to repay Spain, if and to the extent the Award is annulled"2 as further developed by Claimants in the Hearing, the Committee:
a. Decides to lift the stay of enforcement of the Award conditional on the provision of written undertakings by RWE Renewables Iberia, S.A.U and RWE Renewables GmbH (the "Undertakings"), to the Committee's satisfaction;
b. Invites the Parties to confer and agree on the terms of the Undertakings, and to inform the Committee of their agreement by December 13, 2021. Absent an agreement, the terms of the Undertakings shall be decided by the Committee;
c. Decides that upon the issuance of the Undertakings , as approved by the Committee, the Committee will issue the Fully Reasoned Decision on the lifting of the Stay of Enforcement of the Award;
d. By the issuance of the Fully Reasoned Decision, which may amend any aspects of the present Decision, the lifting of the stay will become effective; and
e. Reserves its decision on costs for the Request to a further order or decision.
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