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Lawyers, other representatives, expert(s), tribunal’s secretary

Procedural Order No. 10

I. Background

1.
On 26 February 2018, the Tribunal declared the proceeding closed pursuant to ICSID Arbitration Rule 38(1).
2.
By letter of 7 March 2018, the Respondent filed an application under ICSID Arbitration Rule 38(2) requesting that the proceeding be reopened for the Respondent to submit the following two documents to the record: (i) the Final Judgment of the Court of Justice of the European Union of 6 March 2018 in Slowakische Republik v. Achmea BV (Case C284/26) (the "ECJ Judgment"), and (ii) the European Commission’s Decision C(2017)7384 of 10 November 2017 regarding the Spanish State Aid Framework for Renewable Sources (the "EC Decision").
3.
The Respondent further requested the Tribunal to "allow the Parties to file a submission no longer than five pages, regarding the implications of the CJEU's Final Judgment of Case C-284/16 (Slowakische Republik v Achmea BV) and European Commission’s Final Decision C(2017)7384 on the relevant issues discussed in this proceeding."1
4.
The Respondent claims that the ECJ Judgment is "exceptional forthcoming evidence" that constitutes a "decisive factor" and therefore warrants the reopening of the proceeding for the Tribunal to assess and apply the ECJ Judgment. Specifically, the Respondent explains that the Treaty on the Functioning of the European Union ("TFEU") is applicable to the case at hand pursuant to Article 26(6) of the Energy Charter Treaty ("ECT"), and that the interpretation of the TFEU by the Court of Justice of the European Union is binding on the European Union, including the Netherlands and Spain.
5.
According to the Respondent, the ECJ Judgment "ruled that Articles 267 and 344 of TFEU are to be bindingly interpreted in a manner than [sic] an arbitration clause included in an International Treaty signed between Netherlands and Spain has an adverse effect on the autonomy of EU law and is therefore incompatible with EU law."2
6.
Thus, the Respondent claims, the ECJ Judgment constitutes an "evident decisive factor" as it "affects not only to a Jurisdictional objection raised by the Respondent, but also to the grounds of the present Case. In particular, the reasoning of this Final Judgment directly affects to relevant merits of the present Case:

(i) The reasonable expectations of any investor in renewable energies in an EU member State and;

(ii) The proportionality and the reasonability of the disputed measures under the EU Law as an International Applicable Law."3

7.
Finally, the Respondent claims that the EC Decision should be admitted to the record due to its "close relationship" to the ECJ Judgment. According to the Respondent, the EC Decision "interprets the application of the EU Rules to specific frameworks existing since 2007 in Spain for renewable energy investments"4 and must be applied by the Tribunal as part of the applicable international law and as a relevant fact.
8.
On 7 March 2018, the Tribunal acknowledged receipt of the Respondent’s letter and granted the Claimants until 12 March 2018 to submit their comments to the Respondent’s application.
9.
By letter of 12 March 2018, the Claimants requested that the Tribunal dismiss the Respondent’s application in its entirety but observed that "to the extent that either of the Documents is admitted, however, the Claimants support the Respondent’s request that the Parties should be permitted to make short submissions on the Documents’ relevance."5
10.
The Claimants submit that the Respondent’s application fails to demonstrate grounds for reopening the arbitration, as it has shown neither (i) that the ECJ Judgment is "evidence", nor (ii) that it is a "decisive factor" falling within ICSID Arbitration Rule 38(2). Specifically, the Claimants claim that "evidence" is defined as something that tends to prove or disprove the existence of an alleged fact and therefore does not include legal authorities, such as the ECJ Judgment.
11.
Similarly, the Claimants argue that a "decisive factor" is one which would lead a tribunal to come to a different decision if it were admitted to the record. According to the Claimants, the ECJ Judgment in neither relevant to the Tribunal’s jurisdiction nor to the merits of the case, as it concerns only the application of a specific arbitration clause in a specific "intra-EU BIT."
12.
As to the EC Decision, the Claimants note that the Tribunal dismissed the Respondent’s first attempt to submit such document to the record and that there is no basis for reversing the Tribunal’s decision. Moreover, the Claimants submit that there is no relationship between the ECJ Judgment and the EC Decision and that, in any event, the EC Decision does not fulfil the requirements of ICSID Arbitration Rule 38(2).

II. The Tribunal’s analysis

13.
The Respondent’s application —contested by the Claimants— is based on ICSID Arbitration Rule 38(2). The Tribunal must therefore interpret and apply this provision to the issue at hand.
14.
ICSID Arbitration Rule 38(2) reads as follows:

"Exceptionally, the Tribunal may, before the award has been rendered, reopen the proceeding on the ground that new evidence is forthcoming of such a nature as to constitute a decisive factor, or that there is a vital need for clarification on certain specific points."

15.
Two initial features are salient from the text above. First, the reopening of the proceeding is an exceptional measure. As such, it cannot be taken lightly. On the contrary, it warrants a narrow construction of the requirements to reopen the proceeding.
16.
Second, the provision is not mandatory, but rather grants discretion to the Tribunal; it may reopen the proceeding if persuaded that the requirements set forth in ICSID Arbitration Rule 38(2) are met.
17.
These requirements are (i) that there be "new evidence" forthcoming; (ii) that it be of such a nature as to constitute a "decisive factor"; or (iii) that there be a vital need for clarification on certain specific points.
18.
The Respondent asserts that the ECJ Judgment is "exceptional forthcoming evidence". The Claimants, on the other hand, argue that the ECJ Judgment does not constitute evidence in the terms of ICSID Arbitration Rule 38(2).
19.
The Tribunal is not persuaded by the Respondent’s position. The Claimants are correct in that, generally, "evidence" is defined as something that tends to prove or disprove an alleged fact.6 The term "evidence" is thus linked to matters of fact, rather than to matters of law. The distinction between "evidence" and "legal authorities" was adopted in Procedural Order No. 1 and is thus not extraneous to the Parties.
20.
Respondent claims that the ECJ Judgment must be considered by the Tribunal as a matter of law, not as a matter of fact, in other words, as a legal authority and not as evidence. Indeed, the Respondent argues that the ECJ Judgment comprises a binding interpretation of the law applicable to the dispute at hand. Under this view, the ECJ Judgment should be characterized as a legal authority, rather than as "evidence", and it is not sufficient to characterize a legal authority as "evidence" to comply with Procedural Order No. 1 and with the threshold of Arbitration Rule 38(2). The Respondent did nor articulate any convincing reason why the ECJ Judgment shall be considered "new evidence" under the terms of Arbitration Rule 38(2).
21.
In conclusion, the Tribunal is not persuaded that the Respondent has complied with its burden to prove that the ECJ Judgment can be construed as "evidence" under Procedural Order No. 1 and as "new evidence" under the terms of ICSID Arbitration Rule 38(2).
22.
As regards the second requirement —that the ECJ constitutes a "decisive factor" or that there is a "vital need for clarification on certain specific points"— the Respondent generally claims that the ECJ Judgment will affect a jurisdictional objection submitted by the Respondent and that it mainly affects matters related to legitimate expectations and proportionality. None of these propositions is explained or developed by the Respondent. The Respondent fails to indicate which of the specific defences or pleadings submitted by the Respondent in this arbitration would need to be reviewed in light of the ECJ Judgment and why the ECJ Judgment is a "decisive factor" with respect to such pleadings or defences, or why, as a result of the ECJ Judgment, there is "a vital need for clarification on certain specific points".
23.
Given the exceptional nature of ICSID Arbitration Rule 38(2), the Tribunal is of the view that reopening the proceeding requires more than a general affirmation that the alleged "evidence" affects jurisdiction and some other issues related to the merits.
24.
The Tribunal will therefore reject the Respondent’s request to reopen the proceeding and to submit the ECJ Judgment and to file a submission on the ECJ Judgment.
25.
As regards Respondent’s application to submit the EC Decision to the record, the Tribunal notes that the decision in paragraph [24] above entails the dismissal of the Respondent’s application to submit the EC Decision. The Respondent based its application to submit the EC Decision only on its alleged "close relationship" to the ECJ Judgment. Thus, if the request concerning the ECJ Judgment fails, the request concerning the EC Decision must fail too.
26.
Moreover, the Tribunal notes that it had already dismissed the Respondent’s first attempt to have the EC Decision submitted to the record. This decision was taken having regard, inter alia, to the very advanced stage of the Tribunal’s deliberations at that time. Since that time, the Award has been completed, subject only to final edits and translation. Apart from the EC’s Decision alleged relationship with the ECJ Judgment, the Respondent has offered no persuasive basis for reversing the Tribunal’s decision. The Tribunal therefore confirms its decision to deny permission to submit the EC Decision to the record of this arbitration.

III. The Tribunal’s decision

27.
For the reasons set forth above, the Tribunal:

(i) Rejects the Respondent’s request that the proceeding be reopened in accordance with ICSID Arbitration Rule 38(2);

(ii) Rejects the Respondent’s request to add to the record the ECJ Judgment and/or the EC Decision;

(iii) Rejects the Respondent’s request to allow the Parties to file a submission regarding the implications of the ECJ Judgment and the EC Decision on the relevant issues discussed in this proceeding.

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