Abstract
In recent years several European investors have initiated investor-state arbitration against Spain under the Energy Charter Treaty (ECT) as a result of the radical changes adopted by the Spanish authorities in the regulatory framework of the renewable energy sector. The Novenergía arbitration highlights the complex relationship between competition law and investment arbitration, especially in intra-EU investment disputes. This type of dispute has caused much controversy because EU competition law often plays a central role in investment arbitration. According to Spain’s position, arbitral tribunals are jurisdictionally not competent to render an award since the power to authorize state aid falls within the exclusive competence of the European Commission (EC). When an arbitral tribunal orders the payment of compensation to an investor, that tribunal could act ultra vires, deciding a matter that EU competition law (state aid regime) establishes as beyond any submission to arbitration. But the new scenario opened by Achmea can allow Spain to challenge the jurisdiction of the arbitral tribunal created on the basis of the ECT, request the set-aside of the award issued and oppose recognition and enforcement, at least before the courts of the member states. The EC has underlined the public order nature of the EU competition rules, already established by the Court of Justice of European Union (CJEU) in Eco Swiss, and has pointed out the difficulties that US courts would face when asked to recognize and enforce the international awards. However, in the recent Micula judgment, the General Court of the EU observed that compensation for damage suffered did not constitute state aid unless it represented compensation for the withdrawal of aid that was unlawful, since the EC had no power to review Romanian conduct prior to Romania’s accession to the EU. However, while Micula appears to be closely related to measures taken by Romania prior to its accession to the EU in 2007, other cases seem to relate only to incentive schemes (cuts to renewable energies) implemented after EU accession, thus giving the EC a clearer path to intervene. Finally, the Novenergía arbitration, highlights the difficulties for the recognition and enforcement of the awards issued in the saga of renewable energy arbitrations against Spain, especially where that award is issued under arbitration rules other than the International Centre for Settlement of Invesment Disputes Convention.
The present chapter has been prepared in the framework of the research Project title “La Unión Europea ante los Estados fracasados de su vecindario: retos y respuestas desde el Derecho Internacional (II)” (ref. DER2015-63498-C2-2-P), financed by the Spanish Ministry of Economy and Competitiveness.
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Notes
- 1.
Through the 2000 Plan for Renewable Energy, the 2005 Spanish Renewable Energy Plan, and Royal Decree 661/2007.
- 2.
Ali (2013), pp. 5–6.
- 3.
Two major changes were made to this initial regulatory framework to try to alleviate the considerable economic losses for Spain in the electricity sector: the “package of regulatory measures of 2010” came about essentially with decrees RD 1614/2010 and RDL 14/2010 (a reduction of incentives for the promotion of renewables originally planned), and the “package of regulatory measures of 2013–2014”, especially with decrees RDL 9/2013, RD 413/2014 and Ministerial Order IET/1045/2014 (elimination of said incentives). This radical regulatory change is the fundamental reason that has given rise to more than 40 investment arbitrations against Spain by foreign investors with economic interests in photovoltaic and thermoelectric plants in Spain. See López Escudero (2014), pp. 228–229, Fernández Masiá (2017), p. 669 and Hernández Mendible (2017), pp. 230–236.
- 4.
According to the data from the United Nations Conference on Trade and Development (UNCITRAL), in March 2019 Spain had a total of 42 renewable energy arbitral proceedings pending. It was the second State with the highest number of claims initiated against it after Argentina: https://investmentpolicyhub.unctad.org/ISDS/FilterByCountry.
- 5.
ECT investors can choose to submit their disputes with Contracting Parties to one of three international arbitration regimes: (1) arbitration at ICSID; (2) arbitration before a sole arbitrator or an ad hoc tribunal under the UNCITRAL Arbitration; or (3) arbitration at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
- 6.
- 7.
In particular, Articles 49, 52, 56 and 63 of the TFEU, as well as Articles 64(2), 65(1), 66, 75 and 215 of the TFEU.
- 8.
Case C-536/13, Gazprom, Judgement, 13 May 2015, EU:C:2015:316, para. 56.
- 9.
Case C-102/81, Nordsee, Judgement, 23 March 1982, EU:C:1982:107, paras 10–13; Case C-126/97, Eco Swiss, Judgement, 1 June 1999, EU:C:1999:269, para. 34; Case C-536/13, Gazprom, Judgement, 13 May 2015, EU:C:2015:316, para. 36. See also Opinion 2/15, 16 May 2017, EU: C:2017:376, para. 292. The CJEU emphasizes that the fact that an arbitral tribunal renders decisions pursuant to law, that its award has res judicata between the parties, or that it may be enforceable, does not suffice. For the CJEU, preliminary reference would only be possible if the jurisdiction of a tribunal is mandatory for the parties and emanates directly from a public act and not from an act of the parties’ free will, and if there is a sufficiently proximate link between the legal order of the member state and the arbitration proceeding. The CJEU has established in the Nordsee case that the national courts should refer a question for preliminary ruling in such situations, see Case C-102/81, Nordsee, Judgement, 23 March 1982, EU:C:1982:107, paras 14–15.
- 10.
Electrabel v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, 30 November 2012, paras 4.111 and 4.112. Similarly, the tribunal in Eiser v. Spain recalled that its jurisdiction derives from the ECT, stating that the tribunal “is not an institution of the European legal order and is not subject to the requirements of said order”, ICSID Case No. ARB/13/36, Award, 4 May 2017, para. 199.
- 11.
Case C-65/16, Associaçao Sindical dos Juízes Portugueses, Judgement, 25 January 2018, EU:C:2018:117, paras 31–37.
- 12.
See EC Decision 7384 of 10 November 2017 on State aid SA.40348(2015/NN)—Spain Support for electricity generation from renewable energy sources, cogeneration and waste, para. 163.
- 13.
Specifically, the CJEU held that: “Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States” under which “an investor from one of those Member States may, in the event grounds for concluding that Achmea provides not of a dispute concerning investments in the other Member State, bring proceedings against the later member State before an arbitral tribunal whose jurisdiction that Member state has undertaken to accept”, Case C-284/116, Achmea, Judgement, 6 March 2018, EU:C:2018:158, para. 60. For an analysis of this Judgement, see, Barausova (2018), pp. 129–153; Bilanová and Kudrna (2018), pp. 261–281; Cavedon and Weber (2019), pp. 223–241; Cimiotta (2018), pp. 337–344; Contartese and Andenas (2019), pp. 157–192; Gaillard (2018), pp. 616–630; Gourgourinis (2018), pp. 282–315; Iruretagoyena (2018), pp. 1–23; Pinna (2018), pp. 73–95; and Overduin (2018), pp. 242–260.
- 14.
In this regard, for example, Hindelang (2013), pp. 5–6.
- 15.
Verburg and Lavranos (2018), pp. 197–222.
- 16.
Communication from the Commission to the European Parliament and the Council: “Protection of intra-EU investment”, COM (2018) 547 final, 19 July 2018, p. 26.
- 17.
Ibid. p. 4. Nevertheless, the EC has indicated that it will maintain its opposition to investor-state arbitration even in the event that the EU itself is named as a respondent in an ECT arbitration. For an early discussion of some aspects of such an ECT scenario, see Bermann (2012), pp. 397–445. For the withdrawal of an EU member state from the ECT, see Rao (2018), pp. 154–182.
- 18.
“Declaration of the Representatives of the Governments of the Member States, of 15 January 2019, on the Legal Consequences of the Judgement of the Court of Justice in Achmea and on Investment Protection in the European Union”, 15 January 2019.
- 19.
Member states adopted a dealine of 6 December 2019 to carry out these terminations. But even if the EC should convince member states to terminate all intra-EU BITs, a termination of the ECT is inconceivable and would run counter to the EU’s own (energy) interests. Likewise, an amendment of the treaty through which the EU withdraws its consent to arbitration under Article 26 of the ECT is unlikely given the need for a consensus of all signatories, Stier (2015), p. 170.
- 20.
In its Judgement Budĕjovický Budvar, the CJEU noted that “since the bilateral instruments at issue now concern two Member States, their provisions cannot apply in the relations between those States if there are found to be contrary to the rules of the Treaty”, Judgement 8 September 2009, Budĕjovický Budvar, Case C-478/07 (EU:C:2009:521, para. 98).
- 21.
An ECT award in favour of Novenergía is currently being reviewed by the Svea Court of Appeal. In the context of these proceedings, the Court of Appeal might opt to ask for further guidance from the CJEU with respect to the application of the Achmea precedent to the ECT.
- 22.
A “systemic interpretation” of the ECT in accordance with the EU Treaties could exclude arbitration between the state and the investor in the EU. This approach to “systemic interpretation” was foreseen in the Judgement of 27 February 2018, Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, Case C-266/16 (EU:C:2018:118, paras 42 to 51). According to this reasoning, any provision of a treaty that is part of the EU [i.e. ECT provisions] must be fully compatible with the EU Treaties and with the fundamental principles that derive from them (primacy and autonomy), as they have been recognized in CJEU case law.
- 23.
This interpretation is currently contested before a national court in Sweden: See Case No. 4658-18 Svea Court of Appeal, Novenergía II – Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR, v. Spain, SCC Arbitration (2015/06).
- 24.
Masdar Solar & Wind Cooperatief UA v. Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018; Eiser Infrastructure Limited AND Energía Solar Luxemburg Sàrl v. Spain, ICSID Case No. ARB/13/36; Antin Infrastructure Services Luxembourg Sàrl v. Spain and Antin Energía Termosolar BV v. Spain, ICSID Case No. ARB/13/2, Award, 15 June 2018; Vatenfall AB; Vatenfall GMBH; Vattenfal Europé Nuclear Energy GMBH; Kernkraftwerk Krümmel GMBH & Co. HG; Kernkraftwerk Brunbüttel GMBH & Co. Ohg vs Germany, ICSID Case No. ARB/12/12; Antaris Solar GmbH and Michael Gode v. Czech Republic, PCA Case No. 2014-01; Athena Investmetns A/S v. Spain, SCC Case No. 150/2015 and RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux Sàrl, v. Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and of the Principles of Quantum, 30 November 2018.
- 25.
“Declaration of the Representatives of the Governments of the Member States, of 16 January, on the enforcement of the Judgement of the Court of Justice in Achmea and on Investment protection on the European Union”, p. 3. In addition, Hungary stresses that the Achmea Judgement concerns “only intra-EU bilateral investments treaties”. This judgment is silent on the investor-state arbitration clause in the ECT and “it does not concern any pending or prospective arbitration proceedings initiated under the ECT”, “Declaration of the Representative of the Government of Hungary, of 16 January, on the enforcement of the Judgement of the Court of Justice in Achmea and on Investment protection on the European Union”, p. 3.
- 26.
In particular, the AG noted that: “If no EU institution and no EU Member State sought an opinion from the Court on the compatibility of that treaty [i.e., the ECT] with the EU and FEU Treaties, that is because none of them had the slightest suspicion that it might be incompatible”, Case C-284/16, Slovak Republic v. Achmea BV, Opinion of Advocate General Wathelet (EU:C:2017:699, para. 43, emphasis added).
- 27.
Iruretagoyena Agirrezabalaga (2018), p. 11.
- 28.
According to CJEU case law, when investors from member states exercise one of the fundamental freedoms such as the freedom of establishment or the free movement of capital, they act within the scope of application of EU law and therefore enjoy the protection granted by those freedoms and, as the case may be, by the relevant secondary legislation, by the Charter of Fundamental Rights of the EU, and by the general principles of Union law, which include in particular non-discrimination, proportionality, legal certainty and the protection of legitimate expectations, Judgement 30 April 2014, Pfleger, Case C-390/12 (EU:C:2014:281, paras 55 to 57). Likewise, where a member state enacts a measure that derogates from one of the fundamental freedoms guaranteed by EU law, that measure falls within the scope of Union law and the fundamental rights guaranteed by the Charter also apply, Judgement 14 june 2017, Online Games Handels, Case C-685/15 (EU:C:2017: paras 55–57).
- 29.
Article 194 TFEU.
- 30.
Novenergía II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Spain, Award, SCC Arbitration (2015/063), paras 131–152.
- 31.
Novenergía invoked the dispute settlement provisions in Article 26 of the ECT which provides that where “[d]isputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the area of the former” cannot be “settled amicably”, an investor may submit such a dispute to arbitration pursuant to certain enumerated arbitral rules. These include the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Rules) (Article 26 (2)(4) of the ECT).
- 32.
Novenergía II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Spain, Award, SCC Arbitration (2015/063), para. 695.
- 33.
The Tribunal concluded that “the legislation introduced through RDL 9/2013, Law 24/2013, RD 413/2014 and Order 1045/2014 amount to a breach by the Kingdom of Spain of its obligation to accord to the investor FET as set out in Article 10(1) of the ECT and entitles the Claimant to compensation”, ibid. para. 697.
- 34.
Ibid. para. 860(b). The Final Award further requires Spain to pay Novenergía €2.6 million for the cost of the arbitration and reasonable costs incurred by Novenergía.
- 35.
EC Decision 7384 of 10 November 2017 on State aid SA.40348 (2015/NN)—Spain Support for electricity generation from renewable energy sources, cogeneration and waste, para. 160, emphasis added.
- 36.
Ibid. paras 162–163.
- 37.
In the same Decision, the EC also ruled that the energy sector reforms challenge by Novenergía were compatible with EU law, para. 34.
- 38.
Electrabel SA v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (30 November 2012) and Award (25 November 2015).
- 39.
Novenergía II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Spain, Award, SCC Arbitration (2015/063), para. 166.
- 40.
EC Decision 2017/7384, para. 165, emphasis added.
- 41.
The view taken in Decision 7384 was consistent with a previous Decision by the EC that determined that the payment by Romania of an arbitral award rendered under an investment treaty with another EU member state was unauthorized state aid, see EC Decision 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania—arbitral award Micula v. Romania of 11 December 2013, OJ L 232, paras 94 et seq.
- 42.
Novenergía II – Energy & Environment (SCA), v. Spain, “Expert Declaration of Steffen Hindelang in Support of Respondent the Kingdom of Spain’s Motion to Dismiss and to Deny Confirmation of Foreign Arbitral Award”, Civil Action No. 1:18-cv-1148, para. 51.
- 43.
In particular, Spain drew the Tribunal’s attention to the fact that the EC Decision restates that: “(i) the jurisdictional conflict between EU judicial institutions and ECT arbitral tribunals on intra-EU investment disputes should be solved on the basis of the principle of primacy in favour of EU law; and (ii) any compensation granted by ECT tribunals to investors based on the Kingdom of Spain’s changes in legislation on renewable energy would constitute a state aid that arbitral tribunals are not competent to authorise as this belongs to the exclusive competence of the EU Commission. Accordingly, the Respondent underlines that the EC Decision, which is binding upon the Kingdom of Spain, provides further support to its objection that this Tribunal lacks jurisdiction over the Claimant’s claims”: Novenergía II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. Spain, Award, SCC Arbitration (2015/063), para. 424.
- 44.
Amicus Curiae Brief of the European Commission, 2 May 2017, para. 98.
- 45.
Novenergía II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v Spain, Award, SCC Arbitration (2015/063), para. 461. See Eiser Infrastructure Limited and Energía Solar Luxembourg Sàrl v. Spain, ICSID Case No. ARB/13/36, Final Award, 4 May 2017, para. 199.
- 46.
Cases T-624/15, T-694 and T-704/15, European Food and others v. European Commission (Micula case), 18 June 2019, EU:T:2019:423, paras 83 and 84.
- 47.
Ibid. paras 108 and 111.
- 48.
See Summons Application and Request for Suspension of the Kingdom of Spain, May 14, 2018, para. 4.
- 49.
Decision of the Svea Court of Appeal, May 17, 2018, p. 2.
- 50.
Judgement of the Svea Court of Appeal, Poland v. PL Holdings, Sàrl, February 22, 2019, Case n°. T 8538-17 and T 12033-17, p. 2.
- 51.
See Summons Application and Request for Suspension of the Kingdom of Spain, May 14, 2018, para. 8.2.
- 52.
“Expert Declaration of Steffen Hindelang in Support of Respondent the Kingdom of Spain’s Motion…”, paras 35–45.
- 53.
See Summons Application and Request for Suspension of the Kingdom of Spain, May 14, 2018, para. 8.3.
- 54.
Judgement of the Svea Court of Appeal, Poland v. PL Holdings, Sàrl, February 22, 2019, Case n°. T 8538-17 and T 12033-17, p. 43. The Court of Appeal also noted that the arbitral tribunal “is not considered to be a court in a Member State within the meaning of article 267 TFEU, and therefore cannot request a preliminary ruling from the CJEU”. Ibid., p. 44.
- 55.
Ibid., p. 44.
- 56.
Which requires the invalidation of an award that “includes determination of an issue which, in accordance with Swedish law, may not be decided by arbitrators.”
- 57.
According to Poland, it is of public interest that the autonomy of EU law is not undermined, and that the full effectiveness of EU law is ensured. Therefore, the arbitration clause that is incorporated in Article 9 of the BIT, would be contrary to the foundation of the EU legal system and thereby the Swedish legal system. However, in its reasoning the Svea Court of Appeal understood that the arbitral awards are not invalid under Section 33 of the SAA.
- 58.
EC Decision 2017/7384, para. 165.
- 59.
The Eco Swiss case clearly shows that an award must be annulled where it gives effect to an agreement between undertakings which infringe Article 101 of the TFEU, even if the award itself does not constitute an agreement between undertakings, Judgement 1 June 1999, Eco Swiss, Case C-126/97 (EU:C:1999:269). Otherwise, the parties could place anticompetitive agreements beyond the reach of Article 101 of the TFEU by inserting arbitration clauses in those agreements.
- 60.
Cases T-624/15, T-694 and T-704/15, European Food and others v. European Commission (“Micula case”), 18 June 2019, EU: T:2019:423, paras 103–104.
- 61.
Novenergía II – Energy & Environmental (SCA), Petitioner v. Spain, Respondent, Civil action No.1:18-cv-1148. This District Court has subject-matter jurisdiction over this proceeding pursuant to Section 203 of the Federal Arbitration Act (FAA), which provides that actions or proceedings falling within the New York Convention arise under the laws and treaties of the US and are subject to the original jurisdiction of the district courts of the US. The proceeding arises under the New York Convention because it is an action to recognize and enforce in the US an arbitral award made in Sweden, a state-party to the New York Convention. Moreover, the arbitration giving rise to the Final Award, administered by the SCC, was conducted pursuant to Spain’s agreement to submit to binding arbitration under the ECT.
- 62.
Paschalidis (2019), p. 233.
- 63.
Article V (1)(c) of the New York Convention provides the following grounds to refuse recognition and enforcement of the award: The award “deals with a difference not contemplated by or not falling within the terms of the submission to arbitration” and “contains decisions on matters beyond the scope of submission to arbitration”.
- 64.
The EU Treaties prohibit member states from granting subsidies to private actors (state aid) that might disrupt or treaten to distort competition within the EU (Article 107(1) of the TFEU). Likewise, according to Article 108(3) of the TFEU, state aid is permissible only when first notified to and approved by the EC. To establish whether a particular measure constitutes state aid, the CJEU has adopted a broad reading of the notion, Judgement of 7 March 2002, Italy v. European Commission, Case C-310/99 (EU:C:2002:143), para. 51. The award, even though issued by the tribunal, is imputable to Spain as it would have to be financed through Spain’s state resources. Spain’s payment of the award would qualify as state aid.
- 65.
EC Decision 2017/7384, para.165.
- 66.
See Award, paras 63 and 68: “According to the Respondent, the EC Decision concerned the Spanish state aid framework for renewable sources and was, according to the Respondent, relevant for the case, both as regards jurisdiction and the merits”, para. 63.
- 67.
See Hardy Exploration & Prod. (India) v. Gov’t of India, 314 F. Supp. 3d 95, 109–114 (D.D.C. 2018).
- 68.
Eco Swiss, Case C-126/97 (EU:C:1999:269), at paras 36 and 39.
- 69.
See Revere Copper & Brass, Inc. v. Overseas Private Inv. Corp., 628 F.2d 81, 83 (D.C. Cir. 1980): (“[T]he public policy exception to the enforcement of arbitration awards” extends to awards that “compel […] the violation of law”). As the D.C. Circuit has ruled, it would cause “considerable discomfort to think that a court of law should order a violation of law, particularly on the territory of the sovereign whose law is in question”: In re Sealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987).
- 70.
EC Decision 7384 of 10 November 2017 on State aid SA.40348(2015/NN)—Spain Support for electricity generation from renewable energy sources, cogeneration and waste, para. 165.
- 71.
Case C-284/116, Achmea, Judgement, 6 March 2018, EU:C:2018:158, para. 60.
- 72.
Novenergía II – Energy & Environmental (SCA), Petitioner v. Spain, Respondent, Civil action No.1:18-cv-1148, p. 32.
- 73.
Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C.Cir. 1984).
- 74.
Enron Nigeria Power Holding, Ltd. v. Nigeria, 844 F.3d 281, 289 (DC. Cir. 2016). Nonotheless, the US courts’ practice reveals that “the public policy exception pursuant to Article (V)(2)(b) of the New York Convention could not be substantiated through revamping considerations relating to the sovereign or public status of a party or its property, especially where such defences have been already tried in the arbitral phase. Consequently, the ordre public defence should be assessed on the basis of international standards and narrowly construed so as not to thwart the effectiveness of arbitration agreements and awards circulating under the New York Convention”, see de Stefano (2019), p. 454.
- 75.
See Corporación Mexicana de Mantenimiento Integral, S. de RL v. Pemex-Exploración y Prod., 962 F. Supp. 2d 642, 656-57 (S.D.N.Y. 2013); Chromalloy Aeroservices, a Division of Chromalloy Gas Turbine Corp. v. Egypt, 939 F. Supp. 907, 913 (D.D.C. 1996).
- 76.
German Federal Court of Justice, Slovak Republic v. Achmea, Judgment (Oct. 31 2018), Case I ZB/15. Emphasis added.
- 77.
“Brief of MOL hungarian oil and gas PLC as amicus curiae in Support of Petitioner’s response to respondent Kingdom of Spain’s motion to dismiss and to deny petition to confirm foreign arbitral award”: Civil Action No. 1:18-cv-1148 (TSC), p. 20.
- 78.
According to Article VI of the New York Convention.
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Requena Casanova, M. (2020). The Complex Relationship Between Competition Law and Investment Arbitration After Achmea: The Novenergía v. Spain Case. In: Fach Gómez, K., Gourgourinis, A., Titi, C. (eds) International Investment Law and Competition Law. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-33916-6_10
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