1. The Claimants may submit a response to the Request by Monday, 13 April 2020 ;
2. The Respondent may then, if it chooses, submit a reply to the Claimants’ response no later than Wednesday, 13 May 2020 ;
3. In the event that the Respondent avail itself of the opportunity to submit a reply under paragraph 2 above, the Claimants may submit a rejoinder not later than 14 calendar days from the date of submission of the Respondent’s reply.
4. Any filings submitted pursuant to paragraphs 2 to 3 will be subject to a strict length limit of 10 pages.
(a) Unanimously, the Tribunal has jurisdiction under the ECT and the ICSID Convention over the Claimants’ claim;
(b) Unanimously, the Tribunal has no jurisdiction under the ECT and the ICSID Convention with regard to the claim that the Respondent’s tax measures namely the 7% tax on the value of electrical energy production created by Law 15/2012 violates the ECT;
(c) By Majority, the Respondent has breached Article 10(1) of the ECT by failing to accord fair and equitable treatment to the Claimants;
(d) By Majority, in the light of the Tribunal’s decision in (c), the Tribunal for purposes of judicial economy, does not need to determine the Claimants’ claim with regard to the violation of the Umbrella Clause;
(e) By Majority, the Claimants are awarded damages in the sum of € 77 million for violation of the ECT;
(f) By Majority, the Respondent shall pay interest on the sum awarded in (e) from 20 June 2014 to the date of this Award at 1.16% per annum compounded monthly;
(g) By Majority, the Respondent shall pay post-award interest at the rate of 2.16% per annum compounded monthly from the date of the Award to the date of payment;
(h) Unanimously, the Claimants’ claim for gross-up tax is dismissed;
(i) By Majority, the Respondent shall pay the Claimants 75% of the Claimants’ cost of the proceedings;
(j) Any claim, request or defence of the parties that has not been expressly accepted in this section X is hereby dismissed.
The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered.
(1) Within 45 days of the date on which the award was rendered, either party may request, pursuant to Article 49(2) of the Convention, a supplementary decision on, or rectification of, the award. Such a request shall be addressed in writing to the Secretary-General. The request shall:
(a) identify the award to which it relates;
(b) indicate the date of the request;
(c) state in detail:
(i) any question which, in the opinion of the requesting party, the Tribunal omitted to decide in the award; and
(ii) any error in the award which the requesting party seeks to have rectified; and
(d) be accompanied by a fee for lodging the request.
(2) Upon receipt of the request and of the lodging fee, the Secretary-General shall forthwith:
(a) register the request;
(b) notify the parties of the registration;
(c) transmit to the other party a copy of the request and of any accompanying documentation; and
(d) transmit to each member of the Tribunal a copy of the notice of registration, together with a copy of the request and of any accompanying documentation.
(3) The President of the Tribunal shall consult the members on whether it is necessary for the Tribunal to meet in order to consider the request. The Tribunal shall fix a time limit for the parties to file their observations on the request and shall determine the procedure for its consideration.
(4) Rule 46-48 shall apply mutatis mutandis, to any decision for the Tribunal pursuant to this Rule.
(5) If a request is received by the Secretary-General more than 45 days after the award was rendered, he shall refuse to register the request and so inform forthwith the requesting party.
In this regard, it is important to state that that procedure, and any supplementary decision or rectification as may result, in no way consists of a means of appealing or otherwise revising the merits of the decision subject to supplementation or rectification.53
A review of pertinent arbitral awards illustrates that the availability of the rectification remedy afforded by Article 49(2) depends upon the existence of two factual conditions. First, a clerical, arithmetical or similar error in an award or decision must be found to exist. Second, the requested rectification must concern an aspect of the impugned award or decision that is purely accessory to its merits. Simply stated (and contrary to Respondent’s assertion at paragraph 26 of its Request), Article 49(2) does not permit the "rectification" of substantive findings made by a tribunal or committee or of the weight or credence accorded by the tribunal or committee to the claims, arguments and evidence presented by the parties. The sole purpose of a rectification is to correct clerical, arithmetical or similar errors, not to reconsider the merits of issues already decided.54
(a) the Tribunal did not rely on the proper figure in Table 13 of the Second Brattle Report. The Respondent contends that the figure of EUR 77 million was taken from Appendix B to the Second Brattle Report and in so doing the Tribunal made a mistake in relying on this figure;60
(b) the Tribunal did not reject the request for past damages and that the correct figure that should have been taken from Table 13 is EUR 97.7 million and hence this is a clerical error which should be corrected. Table 13, according to the Respondent, was a sensitivity analysis, allowing adjustments to the damages calculation which were presented by the Claimants;61 and
(c) the Tribunal had failed to consider the damages that were caused prior to the date of valuation, namely, the "lost historical cash flows."62
(a) the Wind Farm’s cash flows that would have accrued "But for" the measures; and
(b) the Wind Farm’s "Actual" cash flows.63
687. As discussed above at paragraph 642a, the Claimants claim the lost historical cash flows of the Claimants’ investments resulting from the Disputed Measures from December 2012 to June 2015 by comparing the Actual cash flows with the But-For scenario cash flows assuming the Disputed Measures were never implemented.
688. Similar to the tribunal in Antin, this Tribunal has found that Spain violated the ECT by its wholesale dismantlement of the Original Regime but not from modifying certain of the elements of the regime. As the course of conduct constituting the breach of the ECT reached "watershed" on 20 June 2014 as set out in paragraph 570 above, the Tribunal rejects the Claimants’ claim for losses prior to the breach.65
Brattle conducts a three-step damage valuation.
a. First, Brattle measures the lost historical cash flows of the Claimants’ investments resulting from the Disputed Measures by comparing the cash flows from 27 December 2012 (the commencement of the Disputed Measures) to June 2014 (the Valuation Date) under two scenarios: "Actual" based on the actual historical financial data for the Claimants’ investments; and "But-for" calculated on the assumption that the Disputed Measures were never implemented.
b. Secondly, Brattle estimates the loss in the fair market value of the Claimants’ investments as at June 2014 under the But-for and Actual scenarios using a DCF method. Brattle develops two versions of DCF model. The Actual model which calculates the projected future cash flows in the Actual scenario. The But-for model, which is identical to the Actual model save for two differences: (i) it assumes the continued application of FITs as specified under RD 661/2007 starting in January 2013; and (ii) it assumes less regulatory risk than exists under the Actual scenario. For each DCF model, Brattle projects future cash flows and then discounts those cash flows to reflect risk.
c. Thirdly, Brattle calculates the pre-award interest owing from June 2014 to the notional award date of November 2018 and the tax gross-up.66
[t]he impact of the TVPEE on renewable producers such as those subject to this arbitration has been neutralized, given that the TVPEE is one of the costs remunerated to those producers through the specific remuneration they receive, as analysed in this Counter-Memorial when examining the current remuneration regime of renewable energy producers. In other words, the specific remuneration received by renewable producers enables them to recover certain costs that, unlike conventional technologies, cannot be recovered in the market, and, also, to obtain a reasonable return. Among those costs is precisely the TVPEE.70
In addition, the Claimants misconceive the function of the recourse to a supplementary decision by asserting that it allows Argentina to respond to their new arguments and evidence. The supplementation process is not a mechanism by which parties can continue proceedings on the merits or seek a remedy that calls into question the validity of the Tribunal’s decision. Referring to Professor Schreuer, the ad hoc Committee in the Vivendi case noted:
[...] it is important to state that that procedure [by which ICSID awards and decisions may be supplemented and rectified], and any supplementary decision or rectification as may result, in no way consist of a means of appealing or otherwise revising the merits of the decision subject to supplementation or rectification.74
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
(1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party’s assertions.
(2) If a party fails to appear or to present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that that party does not intend to do so.
Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.
Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respectively rights of either party."
and contends that the Tribunal has the power to grant a stay on the grounds that it has power to decide on any issue which is not decided by the applicable rules to the proceedings.76
(a) that the Respondent is compelled to notify the Award to the EU Commission in compliance with the decision of the European Union Commission on the S.A. 40348(2015/NN) procedure. The Respondent contends that the binding nature of the EU Commission decision is established in Article 107, 108 and 288 of the TFEU;79
(b) that the ECT recognizes that member States of the EU are legally bound by decisions of EU institutions;80
(c) reliance on the Electrabel decision;81
(d) that the decision of the EU Commission of November 2017 is binding on Arbitral Tribunals when they apply the EU Law and that the exclusive forum of challenging its validity are the European Courts;82 and
(e) the Respondent therefore contends that in the light of the above it must notify the Award to the EU Commission in compliance with EU Law and until the EU Commission makes a decision pursuant to Article 108 of the TFEU, the Respondent cannot comply with the Award as it would be a breach of EU Law.83
(1) If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General.
(2) The requests shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision.84
(a) that the tribunal had the power to issue a stay of enforcement "by operation of Articles 44 to 47 of the ICSID Convention";
(b) a stay was appropriate because the respondent was "compelled to notify the Masdar Award to the EU Commission"; and
(c) under Article 49(2), the "periods of time provided for under" Articles 51(2) and 52(2) "run from the date on which the requested decision is rendered".86
(1) The party applying for the interpretation, revision or annulment of an award may in its application, and either party may at any time before the final disposition of the application, request a stay in the enforcement of part or all of the award to which the application relates. The tribunal or committee shall give priority to the consideration of such a request.91
|ICSID fees||EUR 9,227.78|
|ICSID Advance payments||EUR 46,556.62|
|Editing services||EUR 66.24|
|Courier services||EUR 30.71|
|Allen & Overy Legal Fees||EUR||USD|
|Legal fees - Time-costs up to and including 27 May 2020|
|Legal Fees (13 April 2020 to 27 May 2020)||€ 25,753.14|
|Total legal fees||€ 25,753.14||$0|
|Expert fees and disbursements||EUR||USD|
|The Brattle Group fees - €||€ 37,540.25|
|Claimants’ payment to ICSID||EUR||USD|
In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award.
Arbitrators’ fees and expenses
Tan Sri Dato’ Cecil W.M. Abraham 12,012.50
Dr. Michael C. Pryles 12,656.25
Prof. Dr. Hélène Ruiz Fabri 3,637.50
ICSID’s administrative fees 42,000
Direct expenses (estimated) 3,238.00
Total (estimated) 73,544.25
1) The Request of the Respondent for rectification of the Award is denied and dismissed.
2) The Respondent’s application for stay of enforcement of the Award is denied and dismissed.
3) The Respondent shall pay the Claimants USD 36,772.13 for the costs of the rectification and EUR 63,293.39 for the Claimants’ legal costs.
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