Arbitral Digest

Matter

Eurus Energy Holdings Corporation v. Kingdom of Spain (ICSID Case No. ARB/16/4)

Case no.
ARB/16/4
Seat
France
Applicable rules
ICSID Arbitration Rules in force as of April 2006
  1. 17 March 2021France

    17 March 2021France

    Decision on Jurisdiction and Liability

    International Centre for Settlement of Investment Disputes

    Decision summary
    By majority, the Tribunal found that the Energy Charter Treaty and the European state aid regime apply concurrently; the retroactive claw-back of subsidies breached the stability obligation in Article 10(1), first and second sentences, of the Energy Charter Treaty; there was no other breach of the Treaty; and all other claims were rejected. The Parties were directed to seek agreement on the impact of the claw-back feature and, if they did not agree within three months, either party could request the Tribunal to decide the outstanding issues.

    Supporting details

    8 authorities
    International Centre for Settlement of Investment Disputes

    Authorities cited

    8
    • Convention on the Settlement of Investment Disputes between States and Nationals of Other States
      treaty
    • ICSID Institution Rules
      rules
    • ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules in effect as of April 2006)
      rules
    • Slovak Republic v Achmea BV (Case C-284/16, ECLI:EU:C:2018:158) (Judgment of 6 March 2018, Case C-284/16, ECLI:EU:C:2018:158)
      case law
    • Vattenfall AB and others v Federal Republic of Germany (ICSID Case No. ARB/12/12), Decision on the Achmea Issue, 31 August 2018 (ICSID Case No. ARB/12/12, Decision on the Achmea Issue, 31 August 2018)
      case law
    • Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the legal consequences of the judgment of the Court of Justice in Achmea and on investment protection in the European Union (15 January 2019)
      statute
    • European Commission Decision C(2017) 7384 on State Aid SA.40348 (2015/NN) (Decision of 10 November 2017 regarding support for electricity generation from renewable energy sources, cogeneration and waste)
      statute
    • Eureko B.V. v Slovak Republic (PCA Case No. 2008-13), Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010 (PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010)
      case law
  2. 17 March 2021France

    17 March 2021France

    Partial Dissent

    International Centre for Settlement of Investment Disputes

    Decision summary
    Oscar M. Garibaldi dissented from the majority's decisions concerning the application of EU law, the claims based on Article 10(1) of the Energy Charter Treaty, and the effects of EU law on state aid. He concurred that the claw-back feature breached the first two sentences of Article 10(1), but on different reasoning, and stated that the Claimant's claims based on the first three sentences should have been upheld.

    Supporting details

    3 authorities · 3 participants
    Eurus Energy Holdings Corporation
    Kingdom of Spain
    International Centre for Settlement of Investment Disputes

    Authorities cited

    3
    • Slovak Republic v Achmea BV (Case C-284/16, ECLI:EU:C:2018:158) (Judgment of 6 March 2018, Case C-284/16, ECLI:EU:C:2018:158)
      case law
    • Vattenfall AB and others v Federal Republic of Germany (ICSID Case No. ARB/12/12), Decision on the Achmea Issue, 31 August 2018 (ICSID Case No. ARB/12/12, Decision on the Achmea Issue, 31 August 2018)
      case law
    • European Commission Decision C(2017) 7384 on State Aid SA.40348 (2015/NN) (Decision of 10 November 2017 regarding support for electricity generation from renewable energy sources, cogeneration and waste)
      statute

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Eurus Energy Holdings Corporation v. Kingdom of Spain (ICSID Case No. ARB/16/4) · Matter