In a decision dated 8 May 2023, an ICSID ad hoc Committee ruled on an application to set aside an award made in an arbitration brought under Article 26 of the Energy Charter Treaty (“ECT”) by Baywa R.E. Renewable Energy Gmbh and Baywa R.E. Asset Holding Gmbh against Spain.
In its award dated 25 January 2021, the Arbitral Tribunal held that it had jurisdiction and found Spain to be in breach of its obligation of fair and equitable treatment under Article 10(1) of the ECT, following the Spanish government’s reforms in the renewable energy sector.
Spain subsequently sought annulment of the award, among other reasons, on the basis of Article 52(1)(b) of the ICSID Convention, for a manifest excess of power by the arbitral tribunal in its holding that it had jurisdiction although the dispute was between EU investors and an EU Member State. In essence, the claim represented a request for the application of the CJEU’s Achmea, Komstroy and PL Holdings case law to the ICSID arbitration.
In its decision dated 8 May 2023, not surprisingly, the ICSID ad hoc Committee rejected the lack of jurisdiction argument, as another ICSID ad hoc Committee had already done two months earlier in a decision dated 2 March 2023, which we highlighted in our April 2023 Newsletter (OperaFund Eco-Invest SICAV PLC and Schwab Holdings AG v. Spain (ICSID Case No. ARB/15/36), Annulment Decision of 2 March 2023).
The Achmea jurisprudence thus remains inapplicable to ICSID arbitration.
The confusion continues in intra-EU investment arbitration; the applicability of Achmea depends on whether an arbitration is governed by the ICSID Convention or not and, if not, whether the arbitration has its seat is inside or outside the EU.
Source: Baywa R.E. Renewable Energy Gmbh and Baywa R.E. Asset Holding Gmbh v. Spain, ICSID Case No. ARB/15/16, Annulment decision of 8 May 2023.
