IISD | 10 March 2020
In a new ICSID award, Spain’s reforms of the renewable energy sector are found not to violate the ECT
by Marios Tokas
– Stadtwerke München GmbH, RWE Innogy GmbH, and others v. Kingdom of Spain, ICSID Case No. ARB/15/1
On December 2, 2019, an ICSID tribunal found that Spain complied with its ECT obligations and that the claims raised by German investors were meritless. Thus, the tribunal ordered the claimants to pay EUR 2.3 million toward Spain’s legal fees and USD 362,237 toward Spain’s arbitration costs.
Background and claims
In 2009, the Andasol 3 power generation facility was built in Andalusia, southern Spain, by Marquesado Solar S.L. (Marquesado), a Spanish company that is directly or indirectly wholly owned by German company Stadtwerke München GmbH (SWM) along with a group of other German companies. SWM and the other companies alleged that their decision to build and operate the plant was based on the guarantees provided by the Spanish regulatory system of incentives for investments in the renewable energy sector—specifically, Royal Decree (RD) 661/2007.
In 2012, Spain reformed its renewable energy regime by imposing additional levies, altering the feed-in tariff remuneration to producers and limiting the eligibility requirements for incentives. In response, the claimants and Marquesado initiated ICSID arbitration against Spain on December 29, 2014, claiming breaches of ECT Article 10(1), including the FET, umbrella and non-impairment clauses.
Tribunal dismisses Spain’s jurisdictional objections related to claimants’ EU nationality and EU law
The tribunal dismissed Spain’s objection that Marquesado was not a covered investor, considering that it was controlled by investors of another contracting state. Additionally, it considered that ECT Article 26(1) does not distinguish between different types of contracting parties, thus applying to disputes between an investor from an EU state and another EU member state (para. 129).
The tribunal found that the EU’s accession to the ECT did not nullify the competence of ECT tribunals for intra-EU disputes. In particular, the tribunal denied Spain’s argument that ECT Article 1(2) provides for the transfer of adjudicating competence from the ECT to a Regional Economic Integration Organization (REIO)—such as the EU—when the latter joins the ECT (para. 131). Additionally, the tribunal declined to recognize the prevalence of EU law over ECT Article 25, since the latter simply prohibits non-EU member states that are contracting parties to the ECT from benefitting from treatment between EU member states (para. 132).
Spain argued that no jurisdiction existed over the dispute since SWM, as a publicly owned company, should be equated with Germany and that disputes between EU member states fell within the CJEU’s jurisdiction. However, the tribunal rejected the argument since SWM was constituted as a company under German law and thus fell within the definition of “investor” under ECT Article 1(7), notwithstanding its shareholding status (para. 134).
Lastly, the tribunal declined to dismiss the case on the basis of the incompatibility of ECT with EU law following Achmea. It found that, even if completely accepting Spain’s and Achmea’s views on legal conflict, the ECT should prevail, since ECT Article 16 provides that in instances of conflict the more favourable rule would apply. According to the tribunal, the ECT is the more favourable rule in the present case, given that the EU system does not allow an investor to seek recourse to an arbitral tribunal (paras. 145–146).
Spain’s jurisdictional objection relating to taxation measures is upheld
The tribunal accepted Spain’s argument that the 7% levy imposed by Law 15/2012 on the value of electricity produced was excluded from its jurisdiction under the taxation carve-out contained in ECT Article 21. By interpreting the terms of Article 21 in light of their ordinary meaning (paras. 163–168) and the travaux préparatoires, the tribunal considered the levy a “tax measure,” declining its jurisdiction over the law (paras. 172–176).
The ECT does not provide an enforceable right to a stable legal framework
Turning to the merits, the tribunal rejected the claim that ECT Article 10(1) imposes a self-standing enforceable obligation on contracting parties to provide stable and equitable conditions to investors. Indeed, it held that Article 10(1) is “far too general” to impose specific directions and obligations, and that it informs the other obligations such as the FET standard in Article 10(1) (paras. 196–198).
Spain’s measure did not breach its obligation to provide FET to claimants
The tribunal dismissed the claimants’ allegations that Spain failed to provide a stable regulatory regime, frustrated claimants’ legitimate expectations, failed to act transparently and adopted unreasonable or disproportionate measures.
First, the tribunal found that the Spanish regulatory reform did not take place with the intention to drastically alter the regulatory framework after the desired investment was made, like a “bait-and-switch” stratagem. In the tribunal’s view, the measures were legitimately undertaken to protect public policy and the sustainability of the Spanish electricity system (paras. 257–261).
Second, it deemed that the claimants failed to prove that the Spanish regulatory framework or the actions or inactions of the Spanish authorities guaranteed a stable remuneration for the electricity produced. Rather, it concluded that any prudent investor having undertaken appropriate due diligence would not have legitimately expected such a stable income stream for its investment (para. 308).
Lastly, the tribunal rejected the claimants’ arguments on transparency, unreasonableness and disproportionality. It considered that the measures adopted under the regulatory reform were transparent and involved prior consultations and preliminary reports (para. 315). What is more, the measures bore a reasonable relationship to the objective of achieving the sustainability of the electricity system and reducing the tariff deficit, while the burden imposed on the claimants was proportional to the aim and purpose of the contested measures (paras. 320–322 and 354-355).
Tribunal reaffirms reasonableness of contested measures and denies operation of umbrella clause
The tribunal reaffirmed that Spain’s measures were reasonable and thus did not violate the obligation under ECT Article 10(1) to refrain from impairing investments through unreasonable measures (para. 364). Furthermore, it considered that Spain did not enter into any contractual or contractual-like obligations with the claimants. It also held that the claimants’ alleged agreement of July 2010 (a press release issued by Spain) and a 2011 resolution by Spain’s Directorate General for Energy Policy and Mines did not have any legal binding force as such (para. 383–384).
Allocation of costs and expenses
The tribunal took into account the ECT’s silence on the allocation of costs and expenses but decided to examine the circumstances in order to reach a fair result. In light of the legality of the challenged measures, the failure of Spain’s jurisdictional objections and the high amount of costs, the claimants were ordered to bear to 83.3% of Spain’s costs and expenses (para. 403–405).
Kaj Hobér’s dissenting opinion: no expectation of stability of hydro investments
In his dissenting opinion on the merits, Kaj Hobér considered that the radical and fundamental changes to the regulatory regime of Spain violated its obligations under ECT Article 10(1) since they were incompatible with the investors’ legitimate expectations. The dissenting arbitrator stressed that legitimate expectations should not be equated to a guarantee or promise (para. 10) but considered that expectations were created based on the Spanish regulatory framework, the representations and the statements made by Spanish officials, referring to regulatory certainty and stability (para. 16).
Notes: The tribunal was composed of Jeswald W. Salacuse (president appointed by the ICSID Secretary General, U.S. national), Kaj Hobér (claimants’ appointee, Swedish national) and Zachary Douglas (respondent’s appointee, Australian national). The award of December 2, 2019, including the dissent, is available at https://www.italaw.com/cases/7791
Marios Tokas is an international lawyer based in Geneva. He is pursuing his Master’s in international law at the Graduate Institute of International and Development Studies. He holds an LL.M. in public international law and an LL.B. from the University of Athens. He is currently interning at IISD, Geneva Office.