[…] the Cube Case holds substantial similarities with the present case. Such similarities determine that, through the Cube Decision, Judge James Spigelman has already expressed his opinion on essential issues that have been raised and that will have to be resolved in this arbitration, in a way that simply leaves no room for a different determination in the present arbitration. This prejudgement necessarily conveys that the challenged arbitrator manifestly lacks impartiality when approaching the issues at dispute in this case.3
a) The Secretary General order the suspension of the SAPEC, S.A. v. Kingdom of Spain case (No.ARB/19/23) until a decision is taken on the request for challenge pursuant to Rule 9(6) of the Arbitration Rules;
b) The disqualification of Judge James Spigelman in the SAPEC, S.A. v. Kingdom of Spain arbitration proceedings (No.ARB/19/23) and his replacement in accordance with the terms of Article 58 of the ICSID Convention.29
a. dismiss the Challenge for failing to satisfy the standard of manifest lack of impartiality and independence of Articles 14 and 57 of the ICSID Convention;
b. decide the Challenge expeditiously, so as not to delay the proceeding; and
c. order Spain to bear all costs that arise out of or in connection with the Challenge.56
[…] I accept that issues that will arise in these proceedings involve matters on which I have expressed a view, on the basis of the facts and submissions in Cube Infrastructure SICAV & Ors v Kingdom of Spain ICSID Case No ARB/15/20. It appears from the Request for Arbitration and the Request for Disqualification that that the parties in this case will advance arguments on which both the Claimants and Spain were not successful in Cube.
I am aware that there are subsequent decisions on the changes to Spain's renewable energy regime which take a significantly different view from that set out in Cube. I refer to two cases issued on the same day, 2 December 2019: Stadwerke Munchen GMBH, RWE Innogy GMBH & Ors v Kingdom of Spain ICSID Case No ARB/15/1 and BayWa R.E. Asse1 Holding GMBH v Kingdom of Spain ICSID Case No ARB/15/10.
In the former the Tribunal, by majority, rejected all the Claimants submissions, including with respect to the Claimants' legitimate expectations under the FET standard in S 10(1) of the ECT, that being the basis of the decision in Cube.
In the latter, the Tribunal, chaired by James Crawford a Judge of the International Court of Justice, rejected the legitimate expectations case, although it found that a feature of the legislative change in 2103 [sic] did breach the stability clause of S I 0(1). Cube did not consider the stability clause.
The two cases took different views to that in Cube on a number of steps in the reasoning leading to the ultimate decisions e.g. on the characterisation of some of Spain's regulatory changes, on the deference to be given to decisions of the Supreme Court of Spain and on the significance of EU state aid regulation.
These are fully reasoned Awards. I have not formed a view about the reasoning in these new precedents. However, I am confident that I am able to hear and decide submissions based on this different reasoning with an open mind. […]
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14.
Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.