I INTRODUCTION

This chapter provides an overview of the arbitration developments in Spain since May 2019. It focuses on both commercial arbitration under the Spanish Arbitration Act (SAA)2 and investment treaty arbitration.

Section I briefly addresses some of the main features of the SAA, and the key differences between the SAA and the UNCITRAL Model Law. Section II provides an overview of the year's salient developments in Spain, including an analysis of relevant Spanish judicial decisions in the past year, an update on investor–state arbitration, in particular the year's developments in some of the numerous Energy Charter Treaty (ECT) claims that have been brought against the Kingdom of Spain in recent years, and an analysis of the effects of covid-19 on arbitration in Spain. We conclude with some brief conclusions, indicating the outlook for the year to come.

i Background to the legal framework: the SAA

SAA: a monist, Model Law jurisdiction

The SAA, essentially based on the UNCITRAL Model Law of 1985 (Model Law)3 with certain significant modifications, was amended in 2011 to provide greater legal certainty and to relieve the overloaded national courts,4 and contains the following key features:

  1. it generally adopts a monist approach in providing a uniform regulation of domestic and international arbitration, although some provisions of the SAA apply to international arbitration only;5
  2. its governing philosophy aims to be anti-formalistic;6
  3. its default rule is that arbitrators will decide pursuant to legal rules (as opposed to ex aqueo et bono), absent express agreement between the parties to the contrary;7
  4. it provides that the parties are free to decide the number of arbitrators, as long as the number is uneven. If the parties have not agreed on the number of arbitrators, the default rule is that the tribunal shall consist of a sole arbitrator;8 and
  5. arbitration is permitted regarding any matter that parties are free, pursuant to Spanish law, to settle between them.9

The SAA diverges from the Model Law in certain aspects.

Arbitrability

As previously mentioned, the SAA establishes that any dispute may be submitted to arbitration if it can be freely settled by the parties pursuant to Spanish law (Article 2.1 of the SAA). Moreover, the SAA also provides that, in respect of international arbitration, an arbitration agreement is valid when it is deemed as such pursuant to any one of the following: the law chosen by the parties to govern the arbitration agreement, the law governing the merits of the dispute or Spanish law (Article 9.6 of the SAA).10

Enforceability

A state or a state-owned company may not invoke the prerogatives of its own laws in order to avoid its obligations under an arbitration agreement (Article 2.2 of the SAA).

International arbitration

In addition to the criteria under Articles 1(2) and 1(3) of the UNCITRAL Model Law, the SAA provides that arbitration will be deemed international if, among other things, it affects the interests of international trade (Article 3(c) of the SAA).11

Number of arbitrators

As noted above, the SAA's default rule when an arbitration agreement fails to stipulate the number of arbitrators is to have a sole arbitrator (Article 12 of the SAA).

Arbitrators' liability

The SAA limits the grounds for arbitrators' liability to wilful misconduct, bad faith or gross negligence (Article 21 of the SAA).

Confidentiality

The SAA expressly states that arbitration is confidential unless otherwise agreed by the parties (Article 24.2 of the SAA).

ii Concept of international arbitration

As previously noted, arbitration will be deemed to be international in any of the following circumstances:12

  1. at the time the arbitration agreement was concluded, the parties' domiciles were in different states;
  2. any of the following are located outside the state where the parties (or one of them) are domiciled:
    • the place of arbitration, as set forth in the arbitration agreement or pursuant thereto;
    • the place of performance of a substantial portion of the obligations of the legal relationship giving rise to the dispute; or
    • the place most closely related to the subject matter of the dispute; or
  3. the legal relationship from which the dispute arises affects the interests of international trade.

iii Form and content of arbitration agreements

According to the SAA, an arbitration agreement must be made in writing in a document signed by the parties, in an exchange of correspondence or by any other means of communication that provides a record of the agreement. This requirement is satisfied when the arbitration agreement appears and is accessible for subsequent consultation in any other format.13

The SAA, naturally, recognises the principle of separability of the arbitration agreement and its corollary, the principle of Kompetenz-Kompetenz.14

The SAA recognises that a valid arbitration agreement may exist and may encompass contractual as well as extracontractual disputes, as long as the agreement reflects the will of the parties to submit all or some disputes to arbitration that have arisen or that may arise between them in respect of a particular legal relationship.15

Pursuant to the SAA, if the arbitration agreement is included in a standard form agreement, its validity and its interpretation shall be governed by the rules applicable to such contracts.16

Spanish courts, in interpreting arbitration agreements, tend to give international disputes a wider berth than domestic ones. Indeed, in matters of the arbitrability of a dispute and the validity of an arbitration agreement, the SAA allows them to do so by offering several options for saving (validating) an arbitration agreement whose validity or application might be questionable under the lens of purely domestic law.

As noted above, the SAA establishes, with respect to international arbitration, an in favorem validatis principle inspired by Swiss private international law.17 An arbitration agreement will be valid and a dispute capable of being submitted to arbitration if the requirements of any one of the following are met: the legal rules chosen by the parties to govern the arbitration agreement, the rules applicable to the merits of the dispute or Spanish law.18

II THE YEAR IN REVIEW

i The creation of a unified arbitration court in Madrid

The three main arbitral institutions in Madrid, the Court of Arbitration of the Madrid Chamber of Commerce (CAM), the Madrid-based Civil and Mercantile Court of Arbitration (CIMA) and the Court of Arbitration of the Spanish Chamber of Commerce (CEA), constituted on 16 October 2019 a unified international arbitration court in Madrid (the CIAM). The ICAM Court of Arbitration is expected to also join this new arbitration court in the future.

As of January 2020, the CIAM is competent to administer two types of international arbitration arising from new arbitration agreements (signed as of 1 January 2020): those arising from agreements in which the parties directly designate the CIAM as the administrative court; and those arising from agreements in which the parties agreed to submit to arbitration administered by the CAM, CIMA or CEA. Cases with arbitration agreements signed before 1 January 2020 may also be administered by the CIAM if the parties agree to this.

ii Arbitration developments in local courts

Arbitrability of disputes related to or arising out of agency agreements

The Court of Appeals of Santander ruled, in a decision dated 17 June 2019, that disputes related to or arising out of agency agreements may be subject to arbitration.

The appellant alleged that such disputes could not be heard by an arbitration tribunal, mainly because the rules contained in the Law on Agency Agreements19 are of mandatory application; and the Law on Agency Agreements provides (in its second additional provision) that jurisdiction to hear actions arising from the agency contract shall lie with the judge of the domicile of the agent, with any agreement to the contrary being null and void.

The Court refused the appellant's arguments, finding that the mandatory regulation of a certain matter does not mean that the contracting parties cannot overcome by negotiation any possible disputes relating to that matter; nor does it mean that they are legally prohibited from ceasing to demand the rights recognised in that rule, or from waiving the claims already arising in their favour. The Court stressed that, in principle, all economic rights are available, and therefore waivable, unless such availability or waiver is contrary to the general interest or public order, or prejudicial to third parties. In addition, the Court reasoned that the second additional provision of the Agency Agreement Act could only refer to territorial submission to the courts and not to submission to arbitration.

Accordingly, where they are brought before the Spanish courts, claims regarding agency agreements must be filed before the court of the territory in which the agent has its domicile. This does not, however, preclude the parties from agreeing to refer to arbitration disputes that may arise out of these contracts.

Arbitration clauses and the Spanish Unfair Competition Act20

A decision rendered by the Court of Appeals of Barcelona, dated 6 May 2019, ruled on an appeal concerning whether claims derived from the Spanish Unfair Competition Act are subject to arbitration in circumstances where the underlying arbitration clause covers 'the interpretation or performance of the contract'.

In the first instance, the appellant brought a jurisdictional objection on the basis that the contract included an arbitration clause. The clause stated that any dispute that may arise between the parties in relation to the interpretation or performance of the contract, and which the parties are unable to settle by mutual agreement, had to be definitively settled by arbitration administered by the Spanish Court of Arbitration, in accordance with its rules and regulations.

The appellant argued that the claims brought by the claimant in a request for provisional measures were subject to arbitration and that, therefore, the first instance court lacked jurisdiction. In particular, the appellant alleged that the claims were included in the list of claims permitted by the Spanish Unfair Competition Act, and were contractual in nature (i.e., they related to the milk supply contracts signed between the parties) and thus fell under the arbitration agreement contained in the contract.

The Court of Appeals ruled in favour of the appellant on the merits due to lack of a prima facie good case, but rejected the appellant's arguments on the scope of the arbitration clause, stating that the claims brought by the claimant were legal claims derived directly from the application of the rules of unfair competition, and that it did not matter whether the facts on which they were to be applied related to contracts. According to the Court, in the case before it the dispute did not relate to breach or noncompliance with contractual obligations, but to an alleged situation of economic dependence of the claimant due to the purported infraction of the unfair competition rules by the defendant. Therefore, the arbitration agreement, which concerned disputes arising from the interpretation and performance of the contract, did not cover disputes regarding unfair competition acts.

Arbitration clauses contained in delivery notes

A decision issued by the High Court of Justice of Galicia, dated 10 April 2019, set aside an award rendered in arbitration proceedings administered by the Association for Commercial Arbitration (TAM) on the basis that the arbitration agreement was non-existent or invalid. The Court pointed out that the only reference to arbitration in the long business relationship between the parties was the inclusion, at the bottom of each of the delivery notes (prepared and presented for signature by the defendant), of an arbitration clause in small and almost illegible print. The Court set out various reasons for its determination that the arbitration agreement was invalid or inexistent (i.e., the delivery notes were not signed by the claimant and the small and almost illegible print was used to hide the existence of an arbitration clause).

Specifically, the Court mentioned that while it is true that both the general principle of freedom of form in Spanish law and Article 9 of the Arbitration Act21 allow a very broad interpretation of the possibilities of documenting an arbitration agreement, it is also true that a delivery note cannot be considered an agreement, and in the case at hand the delivery notes were not signed by both parties. The Court mentioned that although the contracts did not require any formality, the necessary consent to arbitration could not be inferred by a statement made by one of the parties in a document with a purpose unrelated to recording binding agreements.

Lack of legal standing of arbitrators or arbitral institutions in award annulment proceedings

The High Court of Justice of Madrid refused, in a decision dated 20 October 2019, a request for annulment of an arbitration award rendered by the Madrid Court of Arbitration in which the claim was brought only against the arbitrators. The court determined that in annulment proceedings, legal standing, with certain exceptions, corresponds to the parties to the arbitration proceedings. Arbitrators are denied both active and passive standing in the process of annulling awards, as are the arbitration institutions.

In this sense, the court recalled that in the process of the reform of the Arbitration Act in 2011 by Act 11/2011, an attempt was made to include a paragraph in Article 42.1 that would have allowed arbitral institutions to take part in annulment proceedings of awards administered by that arbitration institution. The proposition provided that the court must notify the initiation of the annulment procedure to the arbitration institution that administered the arbitration, which may be present in the procedure as the defendant. That proposed amendment to the Arbitration Act was finally not introduced by Act 11/2011.

On the other hand, when the Constitutional Court has had the opportunity to rule on the matter, the legal standing of the arbitration institution and the arbitrators in annulment proceedings has not been admitted. Constitutional Court decision 326/1993 of 28 October found that an arbitrator as such cannot appear and act as a party in the proceedings that may result from an award. It is up to the holders of the rights and legitimate interests that are in dispute to defend them through the corresponding procedural channels, including, where appropriate, an appeal for protection before the Constitutional Court.

Considering these precedents, the High Court of Justice of Madrid concluded that when Article 41.1 of the Arbitration Act refers to the party requesting annulment ('the award may only be annulled when the party requesting annulment claims and proves'), it refers only to parties to the arbitration proceedings. Thus, arbitrators or arbitration institutions cannot appear in the annulment process, despite the potential liability of arbitration institutions established in the Arbitration Law.

Control of arbitration clauses in swap agreements entered into between banks and companies

The Court of Appeals of Santander upheld the validity of an arbitration clause contained in an agreement entered into between a bank and a company. The Court thus confirmed the first instance court decision declaring its lack of jurisdiction to hear the case because the dispute had been submitted to arbitration.

According to the Court of Appeals of Santander, the fact that the arbitration agreement was contained within a contract of adhesion (drafted by the bank) cannot result in the invalidity of the clause. The arbitration clause had a clear and evident meaning and did not give rise to any interpretative doubt that needed to be resolved. The Court therefore concluded that the arbitration clause met the conditions of incorporation and transparency referred to in Article 6 of Act 7/1988 on general contracting conditions. Further, there can be no potential abuse of a general condition submitting disputes to arbitration where the contract was concluded between professionals (i.e., not with a consumer).

iii Investor-state disputes

Spain continues to see a number of international arbitral proceedings lodged against it owing to reforms to its electricity sector that have had a negative impact on renewable energy investors. Below is an overview of those claims and a summary of the first rulings issued in these matters.

Overview of investor claims against Spain

To develop its renewable energy sector, and starting in the late 1990s, Spain put in place an economic regime (a special regime) for qualifying renewable energy projects based on a feed-in tariff (FIT) scheme, most notably under Royal Decree 661/2007, in May 2007 (RD 661/2007).

From 2010 onwards, the government has enacted a series of legislative and regulatory measures that have changed the terms of the incentive regime. This culminated in an overall reform of the electricity sector introduced by a royal decree law in July 2013, which announced the withdrawal of the special regime as of that time in anticipation of a reformed regime, finally implemented in June 2014 when a new Electricity Law and accompanying regulation were passed and published.22 As noted in previous editions, these changes prompted numerous claims by foreign investors in international arbitral proceedings under the ECT (as well as hundreds of claims by national investors in the Spanish domestic courts).23

Spain has faced or is facing at least 40 ECT claims as a result of these measures.24 Of these cases, five claims have been brought under United Nations Commission on International Trade Law Arbitration Rules, 10 under the Rules of Arbitration of the Stockholm Chamber of Commerce and the rest before the International Centre for Settlement of Investment Disputes (ICSID), pursuant to the ICSID Convention and the ICSID Arbitration Rules. Some of these cases include claims brought by multiple investors in one proceeding.

Investors claim, inter alia, that the changes made to the FIT scheme are contrary to earlier commitments made by the Spanish government in breach of investors' legitimate expectations, and are in violation of the fair and equitable treatment (FET) standard under Article 10(1) of the ECT.

Rulings to date in the claims against Spain

To date, 18 final awards have been published determining ECT claims brought against Spain. In 2016 and 2017, Spain prevailed in the first two cases, Charanne and Isolux. Those cases have since been considered to be outliers arising from their unique facts.25 Since then, Spain has lost 15 cases brought against it. In 2017 and 2018, final awards in favour of the investors were issued in Eiser, Novenergía, Antin, Masdar and Greentech. A detailed analysis of these cases may be found in previous editions. In 2019 and beginning of 2020, final awards were issued in 9Ren, NextEra, Cube, SolEs, InfraRed, Operafund, PV Investors, Stadtwerke, RREEF and Watkins. With the exception of Stadtwerke, the investors prevailed in every one of these awards, which are addressed in more detail below.

9REN

The final award in 9REN was rendered on 31 May 2019.26 The claimant was 9REN Holding Sàrl, a Luxembourg subsidiary of the US-based partnership First Reserve, which invested in eight photovoltaic (PV) projects in Spain in April 2008.27 Seven of these were entitled to receive the RD 661/2007 FIT. The eighth and final PV plant was completed in March 2011 and was therefore not entitled to receive the RD 661/2007 FIT, but was instead registered to receive the subsequent FIT established under RD 1578/2008.

The claimants' claim centred on the 'guarantee of “stability”' contained at Article 44(3) of RD 661/2007.28 That provision (it was alleged) 'contemplated a “grandfathering” of benefits' for installations registered under RD 661/2007.29 This had given rise to the legitimate expectation that the claimants' PV installations would not be subject to future tariff changes.

In determining the claimant's FET claim, the 9REN tribunal endorsed an observation of the United Nations Conference on Trade and Development (UNCTAD) in a report issued by it in 2012 that 'legitimate expectations may arise from “rules not specifically addressed to a particular investor but which are put in place with a specific aim to induce foreign investments and on which the foreign investor relied on making his investment.”'30 The tribunal thus found there to be 'no reason in principle why such a commitment of the requisite clarity and specificity cannot be made in the regulation itself where (as here) such a commitment is made for the purpose of inducing investment, which succeeded in attracting the Claimant's investment, and, once made, resulted in losses to the Claimant'.31

The 9REN tribunal agreed with the claimants' submission that RD 661/2007 contained a specific undertaking at Article 44.3 that future tariff revisions would not affect PV installations already operating.32 This undertaking created legitimate expectations of stability that had subsequently been frustrated by Spain's changes to the FIT implemented from 2010 onwards.33

Contrary to the position under Spain's domestic law, assessing the claims under the FET standard resulted in a breach of the ECT.

NextEra

The tribunal in NextEra issued a decision on jurisdiction, liability and quantum principles on 12 March 2019, which was shortly followed by a final award on 31 May 2019.34 The claim was brought by the Dutch and Spanish subsidiaries of the US corporation, NextEra Energy Inc. Those subsidiaries invested in two concentrated solar power (CSP) plants.35 The claimants were engaged in development activities in respect of the plants between 2008 and 2009.36 The plants were built using project financing in 2011 to 2012.37

The NextEra claimants argued that Spain had failed to protect their legitimate expectations in violation of the FET standard.38 Those legitimate expectations were founded on the regulatory framework as established in RD 661/2007, the registration of its plants in the RAIPRE (the Spanish Registry for the Special Regime Facilities, which had confirmed the right of the claimants' plants to receive the RD 661/2007 FIT), ministerial resolutions issued to the plants confirming the FIT applicable to them and specific statements they alleged had been made to NextEra by Spanish officials.39 In its analysis of the NextEra FET claim, the tribunal noted that: 'it was not convinced that in the circumstances of the present case the mere fact of the Regulatory Framework I [i.e. the Special Regime] was a sufficient basis for the expectation that Claimants would be guaranteed the terms of Regulatory Framework I. The Framework was based on legislation and legislation can be changed.'40

Likewise, it did not consider that registration in the RAIPRE 'did of itself grant any right to the economic regime set out in RD 661/2007'.41 In that regard, the NextEra tribunal agreed with the Charanne tribunal that registration in the RAIPRE was a mere administrative requirement.42 The NextEra tribunal was also not persuaded that the Ministerial Resolutions of December 2010, which were issued to the claimant's plants and confirmed the terms of the regulatory regime applicable to them, gave the claimant a legitimate expectation as to the continuation of that regime.43 It held that all the resolutions did was reiterate the applicable terms of the regulatory regime and the 'Ministerial Resolutions could not do what the legislation to which they applied had not done'.44

The tribunal found, however, that the primary basis for the NextEra claimant's claim was not the legislation itself, RAIPRE registration or the Ministerial Resolutions, but that 'statements and assurances made directly to NextEra by Spanish authorities . . . created expectations about the economic regime that would apply to Claimants in respect of their investment'.45

According to the tribunal, the specific legitimate expectation was not that the RD 661/2007 regime would remain frozen but that 'it would not be changed in a way that would undermine the security and viability of [the Claimants'] investment'.46 That expectation had been repudiated by the new regime, which 'fundamentally and radically changed' the regulatory framework.47 These changes 'went beyond anything that might have been reasonably expected by Claimants when they undertook their investment'.48 There was therefore a breach of FET.49

Cube

The tribunal in Cube issued a decision on jurisdiction, liability and certain issues of quantum on 19 February 201950, followed by an award on 26 June 2019. This case referred to the claimants' investment in in photovoltaic and hydro installations under RD 661/2007. The claimants invested in August 2008 (photovoltaic installations), 2011 and 2012 (hydro installations).

The tribunal addressed the claimants' expectations at two moments in time: first, it considered the claimants' expectations in 2008, when the PV investments were made; and secondly, it considered the claimants' expectations in 2011 and 2012, when the hydro investments were made.

The tribunal drew attention to the retroactive changes made to photovoltaic installations in 2010 to distinguish the claimants' expectations when making the hydro investments in 2011 and 2012 from the photovoltaic investments of 2008. In particular, the tribunal found that after the 2010 measures, investors could have been aware that retroactive changes were possible, although the state would 'minimise departures from the original economic equilibrium established by RD 661/2007'.51 In other words, changes could be expected, although the complete repeal of the system could not.

The tribunal also considered that Spain made a specific commitment in RD 661/2007 that the FIT would apply for the lifetime of qualifying installations. It placed particular importance on the government press release accompanying RD 661/2007, which it found to be an explanatory statement by the government on the meaning of RD 661/2007. In particular its 'repeated, explicit statements that RD 661/2007 itself had no retroactive effect and that future tariff revision would have no retroactive effect'.52

Thus, it was accounted that the 'radical' nature of the change implemented by the new regime was a clear breach of the claimants' legitimate expectations. In particular, the tribunal stated that 'the claimants were entitled to rely, when they made their hydro investments, upon the fundamental characteristics of the Special Regime remaining in place'.53 Thus, the tribunal considered that Spain had violated the obligation under Article 10(1) of the ECT.

SolEs

The SolEs award was rendered on 31 July 201954 and concerned the claimants' investments in two photovoltaic plants. The SolEs tribunal agreed with the Eiser, Novenergía and Greentech tribunals that Spain had violated the obligation under Article 10(1) of the ECT to accord the claimants FET. Accordingly, the tribunal awarded the claimants compensation of €40.98 million.

With respect to its jurisdiction, the tribunal found that both the ordinary meaning of the ECT and its context and purpose provide ECT tribunals with jurisdiction to entertain claims against Spain by investors of other EU Member States. Concerning the primacy of EU law, the tribunal held that it did not find 'a principle of EU primacy over non-EU treaties that was so obvious in the early 1990s that there was no need for an express exclusion of intra-EU disputes from the investor-State arbitration provisions of the ECT'.55 The tribunal, however, upheld Spain's jurisdictional objection based on the tax carve-out under Article 21 of the ECT relating to one of the disputed measures: a 7 per cent levy imposed on the claimants' production of electricity through Law 15/2012 of 26 December 2012.

Regarding the merits, the tribunal considered that Spain's regulations and related statements indicated that the stability of the FIT was a fundamental aspect of the regulatory regime. With regards to the meaning of the Fifth Additional Provision of RD 1578/2008, the tribunal considered that a prudent investor would have understood that the revisions mentioned therein would have only applied to new facilities. The tribunal found this interpretation to be consistent with the Spanish National Energy Commission's (CNE) response to an investor query in 2009.

Although the tribunal did not consider the first set of disputed measures (RDL 14/2010 and RDL 2/2013) to constitute a breach of the claimant's legitimate expectations, it came to a different conclusion, however, with regards to the new regime implemented by RDL 9/2013, Law 24/2013, RD 413/2014 and MO IET 1045/2014. The tribunal found that the changes implemented by the new regime 'changed the basic features of the regulatory regime that was in place when the Claimant made its investment, exceeding the changes that the Claimant could have reasonably anticipated at the time'.56

The tribunal therefore found that the new regime breached the claimants' legitimate expectations as to the continued application of the RD 1578/2008 tariffs and concluded that Spain breached Article 10(1) of the ECT.

InfraRed

The tribunal in InfraRed issued a final award on 2 August 2019.57 The claim was brought by British entities InfraRed Environmental Infrastructure GP Limited, European Investments (Morón) 1 Limited, European Investments (Morón) 2 Limited, and European Investments (Olivenza) 1 Limited and European Investments (Olivenza) 2 Limited. Those subsidiaries invested in two CSP plants, Morón and Olivenza 1. The CSP installations had been registered in the pre-assignment registry on 11 December 2009 and were subsequently registered in the RAIPRE (31 May 2012 in the case of Morón and 18 December 2012 in the case of Olivenza).

Regarding the jurisdictional objections raised by Spain, the tribunal rejected the intra-EU objection, finding that there was a 'long record of recent arbitral awards or partial awards which disposed of the intra-EU jurisdictional objections and maintained the jurisdiction of the respective ECT tribunals' that 'form an arbitral jurisprudence constant which, short of binding this Tribunal, provides nonetheless a persuasive, reasoned and documented analytical framework that the Tribunal endorses and adopts'.58 The tribunal, however, upheld the taxation carve-out objection, rejecting the proposition that the measure had been implemented in bad faith by the state to avoid performing its obligations under the ECT.

In relation to the merits, the tribunal found that RD 1614/2010 and the letters exchanged between the claimants and the Ministry of Industry did give rise to the legitimate expectation that the RD 661/2007 would not be fundamentally altered, as these constituted, together, a 'specific comment'. In particular, the tribunal took the view 'that the Purported Agreement, RD 1614/2010, and the exchange of letters of waiver and December Resolutions did give rise to a legitimate expectation that CSP plants registered on the Pre-allocation Register would be shielded from subsequent regulatory changes to three specific elements of the Original Regulatory Framework, and that this expectation was violated by Spain'.59

With regards to the stabilisation provisions contained in RD 1614/2010 and RD 661/2007, the tribunal stated that they 'must be read in the legislative and regulatory context of the time' and 'suggest that Respondent intended to shield CSP plants registered on the Pre-allocation Register from future revisions of the tariffs, premiums and lower and upper limits that were in effect when claimants invested'.60 The tribunal thus placed a great deal of emphasis on the letters received by the installations, confirming the remuneration they were entitled to.

Importantly, the tribunal also noted that this specific commitment to the CSP plants superseded Spain's arguments concerning the previous amendments to the remuneration scheme, which allegedly should have put the claimants on notice that the regulation could change; and the existence of Supreme Court judgments providing that the government was free to change the remuneration scheme as long as it maintained a 'reasonable return'.

Thus, the tribunal found that Spain had violated the obligation under Article 10(1) of the ECT to accord the claimants FET. Accordingly, the tribunal awarded the claimants compensation of €28.2 million.

OperaFund

The final award in OperaFund was rendered on 6 September 2019.61 The claimants in OperaFund acquired five photovoltaic installations in Spain on the basis of the RD 661/2007 economic regime.

Regarding the jurisdictional objections raised by Spain, the tribunal rejected the intra-EU objection, finding that '[i]n view of the decisions of other tribunals and comments received from the Parties regarding the tribunal's questions, the present tribunal considers that there is no need to “re-invent the wheel”'.62 The tribunal, however, upheld the taxation carve-out objection, rejecting the proposition that the measure had been implemented in bad faith by the state to avoid performing its obligations under the ECT.

In relation to the merits, the tribunal found that Article 44.3 of RD 661/2007 was a clear stabilisation commitment sufficient to create legitimate expectations as to the continued application of the FIT to qualifying installations. In particular, the tribunal stated that it 'has no doubt that the stabilisation assurance given in Article 44(3) is applicable for the investments by claimants' and that 'it is hard to imagine a more explicit stabilisation assurance than the one mentioned in Article 44(3)'.63 The tribunal further acknowledged that this provision aimed to induce investment by protecting it against legislative changes. The tribunal noted that its view is shared by the tribunals in Novenergía and Antin.

The tribunal also agreed that Article 10(1) of the ECT contains an obligation to provide fundamental stability to the framework underlying investments. This protects investors against changes in the essential characteristics of the regime. The tribunal found that dismantling a regulatory regime 'for an already existing investment to which the past incentives were the basis of investing can hardly be considered reasonable, especially when considering the legislator's express statement that the old regime should continue to apply to existing registered investments in spite of possible future changes'.64

Thus, the tribunal concluded that the disputed measures constituted a clear and fundamental change to RD 661/2007 that amounted to a breach of Spain's obligations of stability under the ECT. The tribunal pointed to the findings in Eiser, Novenergía and Greentech. Crucially, its finding included both the new regime and the initial disputed measures (RD 1565/2010, RDL 14/2010 and RDL 2/2013). The tribunal therefore concluded that Spain breached Article 10(1) of the ECT and awarded the claimants a compensation of €29.3 million.

PV Investors

The PV Investors tribunal issued an award on 28 February 202065 finding Spain liable for breaching the FET standard of the ECT. The investors comprised 26 separate claimant entities that belonged to 14 separate investor groups. They invested in 72 different PV plants. The investors' claims with regards to their investments were joined together in a single arbitration proceeding governed by the UNCITRAL Rules and administered by the Permanent Court of Arbitration. All of the claimants' PV installations were duly registered in the RAIPRE by 29 September 2008, thus entitling them to the RD 661/2007 FIT.

Regarding the jurisdiction of the tribunal, in its preliminary award on jurisdiction dated 13 October 2014, the arbitral tribunal had already rejected the jurisdictional objections submitted by Spain and found that it had jurisdiction over the dispute between the 26 claimant entities and Spain.

In relation to the merits, the claimants had submitted two claims: a primary claim and an alternative claim. In the primary claim, they claimed that they had a legitimate expectation to receive the RD 661/2007 FIT for the lifetime of their PV installations, and that this was breached by Spain's disputed measures. In the alternative claim, they posited that even if the tribunal found that their only legitimate expectation was to a reasonable return, Spain still breached the ECT by implementing the disputed measures. The tribunal rejected the primary claim, finding that the expectation of obtaining the RD 661/2007 FIT for the operational lifetime of the plants was not legitimate.

With regards to the alternative claim, the tribunal found that Law 54/1997 guaranteed renewable energy investors a reasonable return. In particular, according to the tribunal, to ascertain whether Spain had breached the ECT, it had to first assess the impact of the disputed measures on the claimants' returns ('in this particular case the quantification of the harm, if any, informs the finding on liability'66). If the disputed measure had prevented the claimants from earning a reasonable return, then they would be entitled to compensation under the ECT. Consequently, the tribunal ordered the parties' experts to submit a joint model quantifying the harm suffered by the claimants as the difference between the reasonable return under Law 54/1997 and the return the claimants would make under the disputed measures. For the purposes of this calculation, the tribunal determined that the reasonable return under Law 54/1997 was 7 per cent post tax.

The joint expert model submitted by the parties' experts presented various damages iterations arising from discrepancies in the experts' views. Following the tribunal's choice of permutations, the joint model resulted in damages of €145.3 million. The tribunal then assessed which claimants had seen their returns reduced to below 7 per cent post tax by the disputed measures, finding that only 'the Claimant entities whose internal rate of return with the Disputed Measures are lower than 7 per cent are entitled to compensation and the harm calculated by the experts in the joint expert model represents the measure of compensation for each Claimant entity'.67 This meant that nine claimant entities were not entitled to damages, reducing the aggregate damages to €91.1 million.

Stadtwerke

The tribunal in Stadtwerke issued an award on 2 December 201968 rejecting the claimants' claims. This case derives from an investment in a CSP installation under RD 661/2007 by the claimants in October 2009.

The tribunal found that the ECT does not protect against changes introduced to safeguard the public interest to address a change of circumstances.69 In the absence of a contract providing that a state will freeze its legislation, the tribunal must carry out an objective examination of the legislation and the facts surrounding the investment.70

RD 661/2007 was subordinate to the 1997 Electricity Law and was the result of revisions to prior royal decrees.71 Its predecessor RD 436/2004 contained a commitment not to change the tariff for existing plants. The Supreme Court had nevertheless found that the change from RD 436/2004 to RD 661/2007 was permissible.72 A reasonable investor therefore should have expected changes to RD 661/2007.

Statements by the CNE and InvestinSpain regarding RD 661/2007 were not relevant since legitimate expectations must only be grounded in the law itself.73 Other representations relied on by the claimants such as the July 2010 agreement, RD 1614/2010 and the March 2011 Resolution did not commit to freeze the tariff. In any event, they are irrelevant to the claimants' expectations since they postdate the October 2009 investment.

As a democratic state, Spain had a right to implement measures to address the tariff deficit.74 Various segments of the population were negatively affected by these measures. The claimants were not entitled to be exempted from harmful measures. The reduction of the claimants' returns was also not unreasonable and, in light of the evidence on the record, the project is still receiving returns of over 7 per cent.

Thus, the tribunal found that the measures in dispute did not breach the FETstandard set forth in the ECT.75

RREEF

The tribunal in RREEF issued a decision on responsibility and on the principles of quantum on 30 November 2018, which was followed by a final award on 11 December 2019.76 This claim was brought by RREEF Infrastructure (GP) Limited, a company incorporated in Jersey, and RREEF Pan-European Infrastructure Two Lux Sàrl, a company incorporated in Luxembourg. The RREEF claimants were part of the Deutsche Bank group and specialised in infrastructure investments.77

The RREEF claimants first invested in Spain in February 2011 by indirectly acquiring an equity interest in three project companies, which held five wind power parks.78 In June 2011, they invested in two other CSP plants known as the Andasol plants.79 In July 2011, the claimants then indirectly invested in a third CSP plant that was in development and that is called the Arenales Plant.80 Notably, the Andasol plants were the same plants that were the subject of the Antin award addressed above.

The claimants alleged that, through the various measures enacted by it between 2012 and 2014, Spain had fundamentally altered the applicable legal and regulatory regime encompassed in RD 661/2007 upon which the claimants had relied when investing in Spain's renewable energy sector.81

The tribunal agreed.82 It found that Spain had implemented a favourable legal framework to attract investment. This conduct gave rise to the legitimate expectation that the legal framework would not be significantly modified.83 In implementing the disputed measures, Spain had radically altered the regulatory framework under which the claimants invested and breached their legitimate expectations.84

The tribunal concurred with the tribunal in Eiser in that the ECT's 'obligation to accord fair and equitable treatment necessarily embraces an obligation to provide fundamental stability in the essential characteristics of the legal regime relied upon by investors in making long-term investments'.85 The tribunal also agreed with the Eiser tribunal that the ECT prevented Spain from 'radically alte[ring] [the regulatory regimes] as applied to existing investments in ways that deprive investors who invested in reliance on those regimes of their investment's value'.86

The tribunal accepted that Spain's regulatory regime was sufficient to create legitimate expectations.87 Unlike other tribunals, however, it considered that 'the guarantee of “reasonable return” or “reasonable profitability” was the main specific commitment of Spain vis-à-vis the investors in the Special Regime'.88 Therefore, in the tribunal's view, the disputed measures ought to be assessed by analysing their impact on returns on the claimant's investments.89

Ultimately, the tribunal found that the disputed measures lowered the return on the claimants' CSP investments below the threshold of a reasonable return. On this basis, it concluded that Spain had radically altered the regulatory regime in reliance on which the claimants had invested.90 It therefore found that Spain's implementation of the disputed measures was a breach of Article 10(1) of the ECT, and set forth the principle for the quantification of damages, which was to take place in a subsequent phase.

Watkins

The Watkins tribunal issued an award on 21 January 202091 with regard to the investment carried out by Watkins (Ned) BV, Watkins Spain, SL, Watkins Holdings Sàrl, Parque Eólico La Boga, SL, Northsea Spain SL, Parque Eólico Marmellar, SL, Redpier, SL in eight wind farms for €91 million. The acquisition of the wind farms was subject to certain conditions precedent, which were satisfied in May 2012 when the formal legal title over the assets was transferred. The wind farms were duly registered in the RAIPRE when they were acquired, and thus qualified to sell their electricity output under the RD 661/2007 economic regime.

Spain raised two jurisdictional objections in this case: an intra-EU objection alleging that the tribunal lacked jurisdiction since intra-EU investments are the exclusive competence of the judicial institutions of the EU as noted in the Achmea judgment, rendered during the course of the proceedings; and a taxation carve-out objection noting that the 7 per cent levy established by Law 15/2012 was outside the tribunal's jurisdiction as a result of the taxation carve-out in Article 21 of the ECT. The tribunal rejected the intra-EU objection, finding that its jurisdiction was 'based on the ICSID Convention, the ECT, and general international law principles governing State consent', which places it in 'a public international law context and not in a national or regional context'.92 The tribunal also clearly established that the Achmea judgment did not apply to the ECT. The tribunal upheld the taxation carve-out objection, rejecting the proposition that the measure had been implemented in bad faith by the state to avoid performing its obligations under the ECT.

Regarding the merits of the case, the claimants' main claim was that the changes to the regulatory framework carried out between 2010 and 2014 breached their legitimate expectations concerning the continued application of the RD 661/2007 FIT, thus breaching the FET standard of the ECT.

The tribunal stated that 'specific commitments were in fact made to the claimants, namely by the relevant legislation and the representations', referring to:

  1. Article 36 of RD 661/2007, which set out the FITs that were available for the lifetime of the installations;
  2. the commitment in Article 44.3 (reiterated in RD 1614/2010) that the FITs would not be changed for existing installations;
  3. the representations of the CNE with regards to such provision;
  4. Spain's overall strategy to attract investment in its renewables sector; and
  5. the English language advertising materials distributed by Spain.

Therefore, the tribunal ascertained that the claimants held legitimate expectations as to the continued application of the RD 661/2007 FIT.

Furthermore, the tribunal heavily criticised the decision on liability rendered in RREEF and found the awards rendered in Eiser, Novenergía, Antin and Masdar more persuasive. In particular, the tribunal criticised the fact that the RREEF tribunal's view that a reasonable return was dynamic was inconsistent with the fact that the cost of money on the capital markets (i.e., the 10-year average of the Spanish 10-year bond) was the same when RD 661/2007 was approved, and in 2013 when RDL 9/2013 was passed. Moreover, the tribunal found that the determination of the rate of reasonable return under the new regulations was 'not based on any identifiable criteria'.93

Additionally, when assessing whether the disputed measures were in breach of those expectations, the tribunal relied on the following passage from the Eiser award, which establishes that investors are entitled to expect that the regulatory regime under which they invested would not be radically altered. Thus, the tribunal found that Spain had violated the obligation under Article 10(1) of the ECT to accord the claimants FET, and awarded the claimants damages of €77 million.

iv Covid-19 and its impact on arbitration in Spain

This submission cannot be complete this year without a final section that refers to covid-19 and its impact on arbitration. In Spain, there is no economic sector or industry that has not been affected in some way by the pandemic, and arbitration is no exception. The government has issued a royal decree declaring a state of alarm due to covid-19 (Royal Decree).94 The state of alarm was declared on 14 March 2020, and it remains ongoing at the time of writing.

Below we address the impact of the pandemic on arbitration proceedings as well as the perspectives that may follow after the termination of the lockdown and the state of alarm.

Arbitration has not been suspended in Spain as a result of the state of alarm

Arbitration has not been expressly included in the activities that have been suspended by the Royal Decree. Most arbitral rules also do not provide that a health crisis is a cause for the suspension of arbitral proceedings. For this reason, each arbitration institution should implement its own decisions and measures in this regard. For ad hoc arbitrations, it will be decided by the agreement of the parties and, failing that, by the arbitral tribunal.

Spanish arbitration institutions and courts (the Spanish Court of Arbitration, Madrid Court of Arbitration, ICAM Court of Arbitration, European Arbitration Association, Barcelona Arbitration Court) have mostly decided to suspend arbitrations where the arbitral tribunal has not yet been constituted. In ongoing arbitrations, both domestic and international, the parties have in some instances agreed either to put proceedings on hold or to delay the procedural calendar. Ongoing arbitrations that have not been expressly suspended are suffering the pandemic in different ways: submissions are only filed virtually, physical bundles will have to wait, hearings are being delayed or held virtually, and calendars are being delayed.

Spanish courts are currently not available in support of arbitration

One of the parallel measures provided for in the Royal Decree that declares the state of alarm is the suspension of courts' activities. This means that Spanish courts are currently closed, with minimum activity. As a consequence, if the assistance of a court is required in an ongoing arbitration, that assistance will have to wait. In Spain, the courts support or take part in arbitrations in the following cases:

  1. the judicial appointment of arbitrators when their appointment is not possible through the procedure agreed by the parties (Article15.3 of the Arbitration Law (LA));
  2. in the event that a judicial procedure is initiated when there is an arbitration agreement and the defendant formulates a declinatory plea based on the existence of a submission to arbitration (Article 11.1 LA);
  3. legal assistance in the practice of evidence (Article 8.2 LA);
  4. the adoption of precautionary measures (Articles 8.3 and 23 LA);
  5. an action for annulment (Article 41 LA);
  6. enforcement of an award (Articles 44 and 45 LA); and
  7. exequatur of foreign awards (Article 46 LA).

Spain as a jurisdiction that enhances arbitration

Several institutions and organisations have begun to take measures to give arbitration a greater role as a means of resolving conflicts arising from covid-19. The General Council of the Judiciary (CGPJ), for example, has drawn up a first set of measures to prepare a plan to avoid the collapse of the courts when the state of alarm declared by the covid-19 health crisis is over. Among other proposals, the CGPJ has put forward its intention to promote the extrajudicial solution of conflicts, which puts arbitration and mediation on the table as alternative ways to avoid the predictable congestion of the courts in the coming months.

Spanish law provides mechanisms for dealing with the impact of an unforeseen event, such as the pandemic on contractual obligations (for example, a defence based on force majeure, frustration or change of circumstances), even where this is not expressly provided for in a contract:

  1. Force majeure is dealt with in Article 1,105 of the Spanish Civil Code (SCC). Unless otherwise provided by law or an agreement, it exonerates a party from complying or becoming liable when that party cannot fulfil an obligation due to a force majeure event.
  2. Under Spanish law, for an event to qualify as force majeure it must be unpredictable and inevitable; subsequent to the agreement; objectively unavoidable, irrespective of the diligence employed; and outside the scope of control of the party that invokes it. The party alleging force majeure must not have previously breached its obligations, as negligence or wilful misconduct are incompatible with force majeure.
  3. Frustration: according to Articles 1,182 et seq. of the SCC, the legal or physical impossibility of complying with an obligation determines the termination of that obligation or entitles the parties to terminate an agreement.
  4. Change of circumstances (doctrine of the clause rebus sic stantibus): (1) when an unpredictable and unexpected change in the circumstances taken into account by the parties when entering into an agreement (2) determines the impossibility to achieve the purpose of the agreement or its frustration, or destroys the economic balance of the contract (so that there is no correspondence between the respective consideration), and (3) the nature or covenants of the agreement do not assign the risk of a change of the circumstances of one of the contracting parties, (4) the negatively affected party can:
    • request a re-balance or amendment of the agreement, during the period of the change of circumstances, or, if that is impossible, the termination of the agreement; and
    • request the dismissal of a claim for specific performance or termination for a breach by the counterparty.

Prospects

This crisis will surely result in thousands of new cases, both in the field of commercial and investor–state arbitration.

In commercial arbitration, an outburst of cases in construction, transportation, supply and post-M&A arbitration is foreseen:

  1. due to the health crisis, many construction sites have been suspended. Disputes are expected in those cases in which the suspension was not mutually agreed by the parties. Additionally, even when works are resumed, delays may occur;
  2. the transportation of goods, although not necessarily included in the lockdown measures, is suffering from labour shortages, travel restrictions and disruptions to international supply chains; and
  3. recent M&A transactions will be affected on matters such as post-acquisition valuations or closing accounts, acquisition price adjustments, claims under contractual guarantees; and material adverse change clauses.

Regarding investor–state arbitration, there is the possibility that some state measures taken to address the pandemic may be considered to breach international treaties or international law standards:

  1. Some governments have implemented lockdowns. This means that many businesses have been obliged to close and the movement of workers has been restricted. However, other businesses considered to be essential are exempt. It will have to be examined whether determining such exemptions has implied discriminatory treatment.
  2. Some governments have decided to nationalise certain industries and to seize medical equipment and manufacturing plants to serve public health. When affecting foreign investments, these measures will have to be examined to verify that they are justified and do not involve improper expropriation or unfair and inequitable treatment.
  3. Some governments have issued legislative measures to support their industries and help mitigate the losses caused by the pandemic. These measures will have to be examined to establish whether they are discriminatory.

In the event that the aforementioned measures implemented by many governments entail a breach of international treaties or international law standards, foreign investors may consider investor–state arbitration as described in other sections of this chapter.

III OUTLOOK AND CONCLUSIONS

As we anticipated last year, three of Spain's main arbitral institutions (CIMA, CEA and CAM) were combined on 16 October 2019 to create a unified international arbitration court in Madrid (CIAM).

This year has also confirmed that, as in most jurisdictions, judicial decisions in Spain affecting arbitration should be followed closely. As in previous years, judicial decisions continue to analyse the proper balance between supporting and supervising arbitration proceedings, particularly when addressing the correct interpretation and scope of an arbitration agreement. This year, the most notable decisions in Spain have addressed the arbitrability of disputes relating to agency agreements and to unfair competition.

With respect to international investment arbitration proceedings brought by foreign investors against Spain, although the majority of the awards issued in these disputes are still in favour of the investors, Spain has seen success after the long line of consecutive defeats. To date, Spain has lost 15 of the 18 ECT claims brought against it. Many more awards are expected over the coming years.


Footnotes

1 Emma Morales is counsel and David Ingle and Javier Fernandez are senior associates at Allen & Overy LLP. The authors are grateful to Millicent Dominguez for her assistance in the preparation of this chapter.

2 Law 60/2003 on Arbitration. For a recent volume that provides a chapter-by-chapter analysis of the SAA in English, see Carlos González-Bueno (editor), The Spanish Arbitration Act: A Commentary, Dykinson, SL (Madrid), 2016. For a text in Spanish that provides a comparative law analysis of the SAA, written by one of the drafters of the SAA, see Fernando Mantilla-Serrano, Ley de Arbitraje, una perspectiva internacional (Madrid): Iustel, 2005 (first edition).

3 United Nations Commission on International Trade Model Law on International Commercial Arbitration adopted on 21 June 1985 (UNCITRAL Model Law) as amended by the United Nations Commission on International Trade Law on 7 July 2006.

4 Law 11/2011 modifying Law 60/2003 on Arbitration.

5 See Articles 2, 3, 8.6, 9.6, 34.2, 39.5 and 46 of the SAA.

6 See the Preamble to the SAA.

7 Inspired by the ICC Rules. See Rule 21.3 (2017 version).

8 See Article 12 of the SAA.

9 See Article 2 of the SAA. The Spanish term is de libre disposición, and refers to any and all disputes over matters that are not reserved to the state for their resolution, such as, for example, divorce.

10 Inspired by Swiss private international law. See Article 178 (2) of the Swiss Private International Law statute: '[A]n arbitration agreement is valid if it conforms either to the law chosen by the parties, or to the law governing the subject matter of the dispute, in particular the main contract, or to Swiss law.' Translation by the Swiss Arbitration Association, available at www.arbitration-ch.org/en/arbitration-in-switzerland/index.html (last visited on 9 May 2018).

11 Inspired by French law. See the French New Civil Procedure Code, Article 1504: 'Arbitration is international if it involves the interests of international commerce' (authors' translation).

12 See Article 3 of the SAA.

13 See Article 9.3 of the SAA.

14 See Article 22 of the SAA.

15 See Article 9.1 of the SAA.

16 See Article 9.2 of the SAA.

17 See footnote 10 and accompanying text.

18 See Article 9.6 of the SAA.

19 Act 12/1992.

20 Act 3/1991.

21 Act 60/2003.

22 Royal Decree 413/2014 on the Electricity Sector (RD 413/2014) and Ministerial Order IET 1045/2014 (MO IET 1045/2014, detailing, among other things, the parameters of the new remuneration scheme applicable to producers of renewable energy).

23 Allen & Overy represents a number of investors in some of the ECT claims against the Kingdom of Spain. The observations made in this chapter are based solely on publicly available information.

24 Public sources indicate that 40 ECT claims have arisen out of Spain's changes to its renewable energy sector: see https://investmentpolicyhubold.unctad.org/ISDS/CountryCases/197?partyRole=2 (last accessed 16 May 2019).

25 Charanne only concerned measures enacted in 2010 and not the overall reform of the electricity sector introduced in July 2013. The investor in Isolux was part of the same corporate group as the Charanne claimant and acquired its PV (photovoltaic) plants in October 2012. This investment was deemed to have been made when the subsequent changes were already foreseeable.

26 9REN Holding Sàrl v. Kingdom of Spain, ICSID case No. ARB/15/15, award, 31 May 2019 (English).

27 9Ren award, paragraphs 85 and 287.

28 9Ren award, paragraph 87.

29 9Ren award, paragraph 88.

30 9Ren award, paragraph 294.

31 9Ren award, paragraph 295.

32 9Ren award, paragraph 257.

33 9Ren award, paragraph 259.

34 NextEra Energy Global Holdings BV and NextEra Energy Spain Holdings BV v. Kingdom of Spain, ICSID Case No. ARB/14/11, final award, 31 May 2019 (English).

35 NextEra award, paragraph 168 et seq.

36 NextEra award, paragraph 168.

37 NextEra Award, paragraphs 176–177.

38 NextEra award, paragraph 582.

39 NextEra award, paragraph 583.

40 NextEra award, paragraph 584.

41 NextEra award, paragraph 585.

42 NextEra award, paragraph 585.

43 NextEra award, paragraph 565.

44 NextEra award, paragraph 586.

45 NextEra award, paragraph 587.

46 NextEra award, paragraph 596.

47 NextEra award, paragraph 599.

48 NextEra award, paragraph 599.

49 NextEra award, paragraph 37(2).

50 Cube Infrastructure Fund SICAV and others v. Kingdom of Spain, ICSID case No. ARB/15/20, decision on jurisdiction, liability, and certain issues of quantum on 19 February 2019 (English).

51 Cube decision, paragraph 322.

52 Cube decision, paragraph 273.

53 Cube decision, paragraph 354.

54 SolEs Badajoz GmbH v. Kingdom of Spain, ICSID case No. ARB/15/38, award, 31 July 2019 (English).

55 SolEs award, paragraph 234.

56 SolEs award, paragraph 462.

57 InfraRed Environmental Infrastructure GP Limited and others v. Kingdom of Spain, ICSID case No. ARB/14/12, final award, 2 August 2019 (English).

58 InfraRed award, paragraph 260.

59 InfraRed award, paragraph 410.

60 InfraRed award, paragraph 418.

61 OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Kingdom of Spain, ICSID case No. ARB/15/36, award, 6 September 2019 (English).

62 OperaFund award, paragraph 380.

63 OperaFund award, paragraph 485.

64 OperaFund award, paragraph 511.

65 The PV Investors v. Kingdom of Spain, PCA case No. 2012-14, award, 28 February 2020 (English).

66 PV award, paragraph 648.

67 PV award, paragraph 847.

68 Stadtwerke München GmbH, RWE Innogy GmbH, and others v Kingdom of Spain, ICSID Case No. ARB/15/1, award, 2 December 2019 (English).

69 Stadtwerke award, paragraph 264.

70 Stadtwerke award, paragraph 264.

71 Stadtwerke award, paragraph 273.

72 Stadtwerke award, paragraph 277.

73 Stadtwerke award, paragraphs 285–286.

74 Stadtwerke award, paragraph 320.

75 Stadtwerke award, paragraph 407.

76 RREEF Infrastructure (GP) Limited and RREEF Pan-European Infrastructure Two Lux Sàrl v. The Kingdom of Spain, ICSID case No. ARB/13/30, decision on responsibility and on the principles of quantum, 30 November 2018 (English).

77 RREEF decision, paragraph 159 and footnote 128 of the RREEF decision.

78 RREEF decision, paragraphs 172–174.

79 RREEF decision, paragraph 162.

80 RREEF decision, paragraph 250.

81 RREEF decision, paragraph 600(2).

82 RREEF decision, paragraphs 386 and 587.

83 RREEF decision, paragraph 390.

84 RREEF decision, paragraph 328 and 600(2).

85 RREEF decision, paragraph 314 citing Eiser Award, paragraph 382.

86 RREEF decision, paragraph 316 citing Eiser Award, paragraph 382.

87 RREEF decision, paragraph 381.

88 RREEF decision, paragraph 384.

89 RREEF decision, paragraph 472: 'the Tribunal will be in the position to determine whether the measures taken by the Respondent have adversely affected the Claimants' legitimate expectation for a reasonable return only when it has evaluated the loss sustained by them, taking into account all the relevant elements.'

90 RREEF decision, paragraph 328.

91 Watkins Holdings Sàrl and others v. Kingdom of Spain, ICSID case No. ARB/15/44, award, 21 January 2020 (English).

92 Watkins award, paragraph 225.

93 Watkins award, paragraph 503.

94 Royal Decree 463/2020 on measures to manage the health crisis situation caused by covid-19.