On behalf of the Kingdom of Spain:
Mr. Alberto Torró Molés, Abogacía General del Estado
Mr. Pablo Elena Abad, Abogacía General del Estado
Ms. Gabriela Cerdeiras, Abogacía General del Estado
On behalf of SolEs Badajoz GmbH:
Mr. Charles Kaplan, Orrick Herrington & Sutcliffe (Europe) LLP
Mr. Tunde Oyewole, Orrick Herrington & Sutcliffe (Europe) LLP
Ms. Sarah Lajugie, Orrick Herrington & Sutcliffe (Europe) LLP
Mr. Thomas Hopp, Voigt & Collegen GmbH
- "REJECT the Kingdom of Spain’s request to continue the stay of the Award.
- IN THE ALTERNATIVE, GRANT a stay conditioned on the provision of either:
o a bank guarantee for the full amount of the award, including interest, issued by a bank situated outside the European Union; or
o an unconditional undertaking to comply if the Award is not annulled, without any reservation, express or implied, on the basis of its alleged EU obligations.
- IN ANY EVENT, ORDER the Kingdom of Spain to pay all costs in connection with these proceedings."107
"The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request." (Emphasis added.)
a. the relevance of the merits and good faith of the Application;
b. the prejudice that Spain might suffer if the stay is not continued; and
c. the prejudice that SolEs might suffer if the stay is continued.
"If the argument is that seeking clearance would create a contradiction between the ICSID Convention Rules and EU law, this issue, together with the need to request clearance from the EU, has been heavily debated by the Parties. The Committee considers that Spain has not shown that the manner through which or the process that will be followed to comply with its obligation contained in Article 53(1) of the ICSID Convention would be affected by the fact that the request for stay is granted or denied now or when the final ruling of the Committee is issued. Thus, the Committee denies this ground for [the] request to stay the enforcement of the Award." (Emphasis added.)155
a. a bank guarantee payable outside the EU; or
b. an unconditional undertaking by Spain to comply with the Award if it is not annulled, without any reservation, express or implied, based on its alleged EU obligations.
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