Due to the lack of jurisdiction of the arbitral tribunals, Spain wins two awards for renewable energy and for the first time it is recognized that Community law is deferential and that arbitration tribunals lack the power to adjudicate investment disputes in the European framework.
Fight for renewable energy sources
Last Friday, October 11 Two arbitration awards have been pronounced in which the Arbitration Courts They realized that they were not competent to hear investment disputes between investors from the EU and Spain. The investors in question were Sapec, SA, a company based in Belgium, and European Solar Farms A/S (ESF), incorporated under Danish law.
It is the first time that the arbitration tribunals of the International Center for Settlement of Investment Disputes (ICSID) have recognized the lack of jurisdiction to hear purely European investment disputes. The awards indicate, with very similar reasoning, that the Energy Charter Treaty (ECT) has the meaning advocated by Spain and the European Commission, according to which the participation of the EU in the ECT, as a regional organization of economic interest, constitutes the supremacy of EU law in the field of the powers conferred by it the Member States have been transferred to the EU.
There were 72 million claims
In total, The investors demanded more than 72 million euros in damages and more than 8 million in costs. In the case of Sapec, the amount claimed was 27.4 million plus interest and almost 4 million in costs, and in the case of ESF, the investors requested damages of 45.1 million plus interest and more than 4 million in costs.
With these procedures Spain is represented and defended by the Public Prosecution Service (International Arbitration Department). These two awards add to the trend already started by the tribunal established under the rules of the Stockholm Chamber of Commerce SCC in the case of GreenPower v. Kingdom of Spain, which declared for the first time the lack of jurisdiction to handle disputes between parties. EU under the ECT, and closes the debate on alleged discrimination in treatment between the tribunals established under the ICSID rules and the rules of the said Chamber.
To date, our country has also succeeded in having the Swedish courts annul three judgments in which the assessment of the arbitral tribunals was incorrect with regard to their jurisdiction to hear investment disputes within the European sphere.