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eiser v spain summary

We welcome any additional information or clarifications on specific cases as well as suggestions to improve the Navigator. ), The award is available at https://www.italaw.com/cases/5721, Energy transition, feed-in tariffs, legitimate expectations, legal stability, Request for arbitration: December 9, 2013, Campbell McLachlan (respondent appointee), Stanimir A. Alexandrov(claimant appointee), International Centre for Settlement of Investment Disputes (ICSID), ICSID Rules of Procedure for Arbitration Proceedings. v. The Kingdom of Spain, ICSID Case No. • Research and policy analysis: monitoring trends, identifying key emerging issues and providing cutting-edge knowledge on IIAs from a sustainable development perspective, Discontinuance orders and settlement agreements are also recorded if such information is available. Foreign direct investment (FDI) is an important tool for the shift to renewable energy production. Proceedings that are not subject to any existing set of arbitral rules, i.e. The structure of economic activities follows the International Standard Industrial Classification of All Economic Activities, Rev.4 (UN ISIC Rev.4). [1] First award against Italy was decided in favour of Italy, see Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. Eiser Infrastructure Ltd. and Eiser Solar Luxembourg (Eiser) invested into three thermosolar plants in Spain in 2007 when Spain had adopted a very favourable renewable energy support scheme though Royal Decree (RD) 661/2007 (para. [3] Isolux Netherlands, BV v. Kingdom of Spain, SCC Case V2013/153. The list of currencies in the Navigator follows the International Organization for Standardization (ISO) 4217 code list. is added to the name of each subsequent case. 17-CV-3808 (LAK) (S.D.N.Y. Amount claimed refers to the amount of monetary compensation claimed by the investor, not including interest, legal costs or costs of arbitration. • ICSID annulment proceedings; Primary sources (i.e. About Us. v. Kingdom of Spain, case number 1:17-cv-03808, in the U.S. District Court for the Southern District of New York. concerning provisional measures or decisions regarding requests for disqualification of arbitrators. While every effort is made to keep the information up to date and complete, the material is provided without any guarantees or warranties as to its accuracy or completeness. Read more here. Spain argued that the DCF method was inappropriate in the present case since the damages claimed by Eiser were “totally and completely speculative” (para. Such arbitrations are also referred to as treaty-based investor-State dispute settlement (ISDS) cases. On 9 May 2017, Claimant submitted a communication seeking authorisation from the Tribunal to add a new legal authority to the record, namely the Award in Eiser Infrastructure Limited and Energia Solar Luxembourg S.a.r.l. official documents relating to the case and information provided by the administering institutions) are the main and preferred source of information. The case is Eiser Infrastructure Ltd. et al. 117). Source: UNCTAD Policy Hub, http://investmentpolicyhub.unctad.org/ISDS. Notwithstanding this general trend, in response to  the economic crises in several countries, a number of governments have revoked or reduced their support to renewable energy and modified the legal regime applicable to renewables. Installations in Spain, dated 17 September 2015 First Brattle Quantum Report E xpert Report of the Brattle Group Financial Damages to EISER, dated 30 October 2014 Second Brattle Quantum Report Second Expert Report of the Brattle Group Rebuttal Report: Financial Damages to EISE R, dated 17 September 2015 v Eiser Infrastructure Ltd. and Anor v. Spain, ICSID Case No. Spain added that it never made any promises or other specific commitments to Eiser that would rise to the level of legitimate expectations protected by the ECT. Finally, citing the awards in CMS Gas Transmission Co. v Argentina (both the award and annulment decision upholding this chain of thought), LGE Energy Corp. v Argentina, BG Group Plc. Consequently, the tribunal held that no reasonable investor could expect that this regulatory framework would remain unchanged. Similarly, procedural orders issued by arbitral tribunals are not included. In Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157, Justice Stewart granted the applicant investors leave for the recognition and enforcement of ICSID arbitral awards of … This refers to the economic sector to which the investment at issue allegedly belongs. This is the IIA(s) pursuant to which the claimant initiated the arbitral proceedings. Whenever possible, information about amounts claimed and awarded is obtained from primary sources such as the arbitration documents. The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant (non-exhaustive). • PCA: Permanent Court of Arbitration 377–380). The situation was further aggravated through the general financial and economic crisis of 2008. The date of the last update is displayed on the Navigator’s home page. Eiser Infrastructure Ltd e.a. where the arbitral tribunal determines procedural rules, are marked “None (ad hoc)”. Find details on all publicly known treaty-based investor-State dispute settlement cases. Retrieved from https://www.italaw.com/cases/5893. • Decided in favour of State: the tribunal dismissed the case for lack of jurisdiction or found that the respondent State has not committed any breach of the applicable IIA. The entry point for all country specific investment policy data. Main goals of UNCTAD’s Work Programme on IIAs The definitive end of the RD 661/2007 regime was marked by Ministerial Order IET/1045/2014, which introduced a new remuneration mechanism for renewable energy plants (para. 1.0 Summary of the decision on jurisdiction. Third, the tribunal held that the number of regulatory changes was significant and could lead to a breach of FET. © Copyright - UNCTAD Division on Investment and Enterprise. This result is in contrast to the Eiser case, analyzed here, which was decided in favour of the investor. The request concerned a dispute arising from treatment allegedly received by Mr. Maffezini from Spanish entities, in connection with his investment in an enterprise for the Spain has also prevailed in Isolux v. Spain, the first decision concerning Law 15/2012. On July 18, 1997, the International Centre for Settlement of Investment Disputes (ICSID or the Centre) received from Mr. Emilio Agustín Maffezini a Request for Arbitration against the Kingdom of Spain. • Reform the international investment agreements (IIAs) regime to enhance its sustainable development dimension, Spain is facing the largest number of claims, counting 41 as of September 18, 2018. Moreover, the tribunal found that there was no expropriation of Isolux’s investment either. This section provides links to sources of information used for gathering data for the case at hand or otherwise relevant to that case. Decisions, judgments and/or awards rendered in the course of follow-on (post-award) proceedings, as well as any individual opinions appended to them, are recorded. Spain did not anticipate the high number of solar developers that would take advantage of the offer and sell electricity to the grid leading to overproduction. • Pending: the arbitration proceedings are pending. Short case name In a terse “Memo Endorsed” Order issued in Eiser Infrastructure Limited et al. The tribunal underlined that the state has the right to regulate and to modify regulatory regimes according to evolving circumstances, and that the FET standard would not lead to a right of investors to regulatory stability (para. In conclusion, the tribunal found that Spain breached the FET standard as it frustrated Eiser’s legitimate expectations, and awarded the investor damages of EUR 128 million. 147). ICSID annulment proceeding), the status of the case is marked according to the outcome of the original arbitral proceeding (i.e. In Eiser v. Spain and Antin v. Spain , the tribunal ruled that the ECT 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.” According ... Summary, conclusions and policy implications. Claimants awarded €128 million. The Italaw.com portal offers a wide collection of case documentation for many investor-State disputes. IIA breaches alleged and found A second question emerges regarding the effects of the renewable energy arbitral outcomes on other types of energy cases, including in areas that are harmful from a sustainable development perspective, such as the fossil fuel industry. Consequently, the government started to adopt legislation that cut and retroactively imposed changes to the support schemes for PV energy. In this case, Spain prevailed. The Czech Republic, Italy[1] and Spain are facing most of such claims, which are all based on the Energy Charter Treaty (ECT). 24, February 2021. 387). 426). Mr. Maffezini had invested in a Spanish company engaged in … ... Masdar v. Spain Masdar Solar & Wind Cooperatief U.A. Initiation of a follow-on proceeding by either disputing party does not affect the field “Case Status/Outcome” of the original proceeding, until the follow-on proceeding is completed. First, the Spanish Parliament adopted Law 15/2012, which imposed a 7 per cent tax on all energy producers. In sum, the Isoluxtribunal dismissed all claims. Secondary sources, such as specialized reporting services and other sources deemed reliable, are used to supplement primary sources and/or obtain case information otherwise unavailable. Yet it argued that Spain’s subsequent decision to replace the regulatory framework adopted in 2007 with a framework based on different assumptions violated its legitimate expectations protected under the ECT. Follow-on (post-award) proceedings include three types of legal proceedings: A case remains pending if any of the following elements remain to be decided: jurisdiction, liability (merits), compensation. As a consequence, it claimed that the value of its investment was reduced significantly. v. Kingdom of Spain … In addition, according to the tribunal, Isolux had knowledge of Spanish domestic case law allowing the government to modify the regulatory framework while guaranteeing a reasonable return on investment to the investor. [2] UNCTAD, Investment Policy Hub. Second, the Eiser tribunal referred to a number of arbitral cases under the ECT emphasizing that, especially in the context of the ECT, host states were to provide a “stable, transparent legal framework for foreign investors” based on the preamble of the treaty as well as on a political document that was its precursor (paras. • Discontinued: the arbitration was discontinued for any reason other than due to a (known) settlement. ARB/13/36 Nonetheless, investors could expect that when changing regulations, a state would not act “unreasonably, disproportionately or contrary to the public interest” (Charanne v. Spain; similarly Blusun v. Italy; SolEs v. Spain; Antin v. Spain) or that changes would not be “total and unreasonable” (Eiser v. Spain; similarly Foresight v. In the eyes of the tribunal, Eiser was an “experienced and sophisticated” investor, which meant for the tribunal that Eiser “recognized that regulatory regimes for utilities are sometimes adjusted, but within feasible limits” (para. • Settled: the disputing parties settled the case and the arbitral proceedings were discontinued for that reason. • Develop a wide range of tools to support the formulation of more balanced international investment policies. Home Emilio Agustín Maffezini v. The Kingdom of Spain. ARB/13/36 ... SUMMARY OF THE PARTIES' CLAIMS AND REQUESTS FOR RELIEF. Case report by: Francisco Zuluaga Ospina**, Editor Diego Luis Alonso Massa*** Summary: In a decision rendered on May 4, 2017, the International Centre for Settlement of 435). • ICSID resubmission proceedings. SCC or ICC), the relevant institution administers that case. ARB/13/36 - Annulment Proceeding - Decision on the Kingdom of Spain's Application for Annulment - English - 11 June 2020 Sign in to download document Country For further information, please contact us via the online contact form. For proceedings that end in a settlement, the amount of compensation that the State agreed to pay to the claimant under the terms of settlement (if known) is recorded in this section. Spain, in contrast, argued that no investor can expect the “freezing or ‘unmodifiability’” of the 2007 regime. DCF, damages and costs A link to the relevant case page at http://italaw.com is provided where such page is available, so that users could browse all documents relating to the case at hand. This legislation repealed RD 661/2007 and thus eliminated the entire regime of fixed tariffs. According to Eiser, at the end of 2014 the investment was worth EUR 4 million compared to an investment of EUR 125 million initially made in the establishment of the PV power plants (para. Administering institution Instances where the respondent failed to appoint an arbitrator, and the latter was appointed by an “appointing authority”, are not recorded separately (i.e. It makes available not only the main arbitral decisions, but also procedural orders, parties’ submissions, expert opinions and other types of documents. • LCIA: London Court of International Arbitration ARB/13/36. Full case name To substantiate its findings, the tribunal first differentiated the present case from the previous Charannecase, where the RDL 9/2013 was not under scrutiny. BIT between Argentina and Spain (1991) Related decision(s) Decision on Objections to Jurisdiction, 25 January 2000: Further information: Case details at unctad.org; Full text of decision at italaw.com UNCITRAL Arbitration Rules), the parties may request any arbitral institution to administer their case (e.g. as a result of resignation, disqualification or passing away), the names of both the previous and subsequent arbitrator are recorded. The ISDS Navigator contains information about known international arbitration cases initiated by investors against States pursuant to international investment agreements (IIAs). ARB/97/7 Soleimany v Soleimany [1998] 3 WLR 811, [1999] QB 785 (CA) Bechtel Co. Ltd. v. Department of Civil … Privacy Policy, International Investment Law and Sustainable Development: Key cases from the 2010s, http://investmentpolicyhub.unctad.org/ISDS, International Institute for Sustainable Development, Jurisdiction – no jurisdiction over taxation measures, Jurisdiction – objection in amicus curiae brief of the European Commission. [3] The Isolux tribunal concluded that Spain did not breach the fair and equitable (FET) standard because, when Isolux decided to invest in Spain, the regulatory framework for renewable energy had already been modified and was undergoing several studies that made its modification inevitable. International investment rulemaking is taking place at the bilateral, regional, interregional and multilateral levels. The case remains pending, for instance, if a State is found to have breached one or more IIA obligations (liability) but no award on damages has been issued yet. • Technical assistance: delivering trainings, seminars and workshops; conducting IIA and model BIT reviews; offering ad-hoc advice to strengthen the capacity of beneficiaries in handling the complexities of the IIA regime, Eiser argued that the appropriate measure to calculate its losses was the reduction of the fair market value of its investment as measures by the present value of past and future cash flows (para. Amount awarded refers to the amount of monetary compensation awarded by the arbitral tribunal to the claimant, not including interest, legal costs or costs of arbitration. In the absence of any agreement to the … This includes discontinuance as a result of non-payment of arbitration fees, in order to pursue litigation in another forum, or for any other reason (including for unknown reasons). This is the institution that provides administrative support for the arbitral proceedings. There is little doubt that the energy transition will be disruptive for foreign investors and the economy more broadly. UNCTAD assumes no responsibility for eventual errors or omissions in these data. Therefore the Charannetribunal had to assess much less “sweeping” changes that had far less drastic economic consequences (para. ARB/14/1) Expand / Collapse All The composition of the ICSID ad hoc committees that adjudicate requests for annulment under the ICSID Convention is recorded. Retrieved from http://investmentpolicyhub.unctad.org/ISDS. These sorts of regimes were novel and in their infancy when Spain constructed its incentives scheme. In addition to a violation of the fair and equitable treatment (FET) standard, the investors also invoked ECT Article 13 concerning expropriation, as well as the non-impairment standard and the umbrella clause of ECT Article 10(1) (para. Information about breaches found is primarily derived from the arbitral decisions. • fully or partially based on an IIA, such as a bilateral investment treaty or the investment chapter of a free trade agreement (not included are investor-State disputes that are solely based on contracts or on domestic investment legislation); In particular, these include decisions (awards) on jurisdictional issues, liability (merits) and damages, including arbitrators’ individual opinions where these were issued. Status/Outcome of original proceedings In conclusion the tribunal adopted a standard according to which “Article 10(1) of the ECT entitled [Eiser] to expect that Spain would not drastically and abruptly revise the regime, on which their investment depended, in a way that destroyed its value. However, the cases lodged against Spain after the entry into force of Law 15/2012 in 2013 have tended to have different outcomes because this law arguably had the most severe impacts on foreign investors. To access a full list of documentation available with respect to a case, users are invited to use (i) the link to the case page on http://italaw.com, and/or (ii) links to the websites of governments and/or arbitral institutions provided in the “Additional information” section. ARB/13/36, Award of May 4, 2017. As a general rule, a rounded figure (to the nearest hundred thousand) of the amount claimed or awarded is provided. Year of initiation ARB/13/36 - Annulment Proceeding - Decision Sobre La Solicitud De Anulación Del Reino De España - Spanish - 11 June 2020 Investigation: In still-confidential Tenoch v. India award, Brower and Stern fall out over availability of national security defence to justify measures taken against Russian investors But this was the result of RDL 9/2013” and the subsequent measures adopted by Spain (para. • Cases in which a final award has been rendered but which are later subject to follow-on (post-award) proceedings (e.g. In treaty-based cases that are simultaneously contract-based or based on national investment law ("mixed" disputes), a case is deemed concluded (for purposes of the Navigator) if the tribunal dismissed the case on jurisdiction or finds no breach of the IIA, even if it proceeds to adjudicate the contract- or statutory-based claims. ISSN 2519-8831 (Spanish ed. For example, in a case where a final award has been rendered but it is later subject to a follow-on proceeding (e.g. Interests in three concentrated solar power plants located in Spain. 154). Eiser claimed losses of EUR 13 million (lost cash flows through June 2014) plus EUR 196 million (losses in cash flows projected over 40 years). the date in which the request for arbitration containing this amount was submitted or the date of the final award). To enable comparisons between cases, all amounts are also converted to US dollars. ISDS data set in excel format (as of 31 July 2020) Eiser Infrastructure Limited and Energia Solar Luxembourg S.à r.l. Please cite as: UNCTAD, Investment Dispute Settlement Navigator, available at https://investmentpolicy.unctad.org/investment-dispute-settlement. v. Kingdom of Spain (ICSID Case No. This refers to the current status of the original arbitration proceedings. • ICSID: International Centre for Settlement of Investment Disputes The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant (non-exhaustive). v. Kingdom of Spain, ICSID Case No. Yet due to the important budgetary implications for the states they subsequently changed the legislation in place and revoked the advantages. Typically it is the first word of a corporate claimant’s name, an abbreviation of the corporate claimant’s name, or the last name of a natural-person claimant “v.” the short version of the respondent State’s name. Amounts claimed and awarded • In summary: • If facts or circumstances exist that may, in the eyes of the parties, give rise to doubts as to the ... Eiser v. Spain, ICSID Case No. Follow the latest developments in investment policies around the world. The three pillars of activities A key point of reference for policymakers in formulating investment policies and negotiating investment agreements. It requires policymakers, negotiators, civil society and other stakeholders to be well informed about foreign direct investment, international investment agreements (IIAs) and their impact on sustainable development. Eiser Infrastructure Ltd v Kingdom of Spain - [2020] FCA 157 - Eiser Infrastructure Ltd v Kingdom of Spain (24 February 2020) - [2020] FCA 157 (24 February 2020) (Stewart J) - 142 ACSR 616 Explore the world's most comprehensive free database of investment treaties and model agreements. By applying the test elaborated in the Electrabel v. Hungary case, the tribunal found that the loss of profitability suffered by Isolux after Spain’s allegedly expropriatory measures was not enough as to constitute a substantial and significant deprivation of the investment. Moreover, the costs and operating performance of power stations are easy to predict” (para. Follow-on (post-award) proceedings For arbitrations brought under the ICSID Convention Arbitration Rules or ICSID Additional Facilities (AF) Rules, the year in which the claim was registered by ICSID is used. Arbitral rules v. Kingdom of Spain, ICSID Case No. The Navigator is updated on a regular, typically biannual, basis. Additional information With the expansion of global trade, investment and technology over the last decades, international investment. • an international arbitration between an investor and a State; v. Kingdom of Spain, ICSID Case No. ARB/14/3, Award of January 21, 2016. The first publicly available award in an energy case against Spain was Charanne, lodged in 2012. 363). Eiser Infrastructure Ltd v Kingdom of Spain [2020] FCA 157 February 25, 2020 / in Commercial Arbitration Cases / by DoylesAr. Discover the world’s most comprehensive online database of national investment laws and regulations. That treaty required the dispute to be submitted to ‘‘the competent tribunal’’ in Spain following the failure of amicable settlement procedures (Art.X.2). These are the arbitral rules in accordance with which the proceedings are conducted. The full case name is recorded as it appears in the official case documents and as it is registered at the administering institution if applicable (listing the claimants in alphabetical order). ARB/14/01, Award of May 16, 2018. Common abbreviations for administering institutions: • SCC: Stockholm Chamber of Commerce (Arbitration Institute) not as “Pending”). When the relevant case documentation is not publicly available, information about breaches alleged may be obtained from other public sources that are deemed reliable. • submitted to arbitration through a notice of arbitration or a request for arbitration, and upon registration of such request if applicable (not included are cases where a disputing party has only notified the other party of the existence of a dispute or signalled its intention to submit a claim, but has not yet commenced the arbitration). Therefore, the final amount of compensation was EUR 128 million. Included are those decisions that concern the substance of the case and affect the final outcome. What tax policymakers need to know about IIAs and their implications for tax measures. The adoption of RD 661/2007 caught the attention of many PV energy investors, including Eiser (para. both types of appointment are recorded under “Appointed by / designated to Respondent” without further distinction). Spain, which the claimant submitted to arbitration under the Argentina-Spain BIT. Details of investment and summary of the dispute When the proceedings are subject to arbitral rules of a certain arbitral institution (e.g. eu 210389719v3 united states district court for the southern district of new york foresight luxembourg solar 1 s.a.r.l., et al., petitioners, v. the kingdom of spain,

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