Real Hearing. Tan real como en el tribunal

En el análisis “The Achmea storm heads straight for Spain”, Ben Sanderson y Roberto Muñoz (DLA Piper) ponen el foco en la situación que ha provocado la decisión del Tribunal de Justicia de la Unión Europea sobre el litigio entre Eslovaquia y la compañía de seguros Achmea (artículo en inglés).

On 16 May 2018, the Achmea v. Slovakia decision[1] was at the eye of the storm of two separate developments affecting Spain.

First, the much anticipated award in the ICSID case of Masdar v. Spain[2] was rendered. The tribunal declared that the Spanish State violated the fair and equitable treatment provision contained in the Energy Charter Treaty (ECT) and, consequently, ordered the State to pay damages to the investor totalling €64.5 million plus interest.

One of the most significant aspects of the award is how the arbitrators assessed the ruling in the Achmea decision of the European Court of Justice (CJEU) issued on 6 March 2018. In that ruling, the CJEU decided (contrary to the opinion of the Advocate General) that the arbitration clause contained in the applicable intra-EU bilateral investment treaty (BIT) was incompatible with EU law. However, the extent to which this decision also applied to arbitration agreements included in multi-national treaties, rather than in intra-EU BITs, was somewhat unclear.

However, in Masdar the tribunal sought to shed some light on this issue. The tribunal (John Beechey, Gary Born and Brigitte Stern) found that the Achmea judgment had “no bearing” upon the outcome of the case. The tribunal stated that the Achmea decision was limited to consideration of BITs concluded between Member States and that the decision does not apply to multilateral investment treaties such as the ECT. The signatories of the ECT include non-EU Member States and the EU itself.

The storm further intensified with a second development the very same day. In a separate matter, the Swedish Svea Court of Appeal decided to stay enforcement (and not to annul, as incorrectly announced by Spanish media) of the SCC award in Novenergia v. Spain[3], on the basis of the Achmea decision. That award had been rendered in February 2018 pursuant to the ECT. In the court proceedings, Spain is seeking to argue that the arbitration provisions in Article 26 of the ECT are incompatible with EU law and therefore the tribunal lacked jurisdiction. In a separate line of attack, Spain has requested that the Swedish court seek guidance from the CJEU on the question of the compatibility of the ECT with EU law, and the application of the reasoning in Achmea to the ECT.

Spain’s decision to seek to capitalise on the Achmea decision to the fullest extent is a sensible strategic move as the State is currently facing (according to a list prepared by the Spanish government in November 2017) over 35 investment claims brought under the ECT, with damages claimed from Spain exceeding €7.5 billion.

These two developments put Spain and the ECT at the eye of storm created by the Achmea decision. The storm will undoubtedly rage for some time to come, as more tribunals and national courts are asked to consider the impact of the Achmea ruling.

[1] Judgment of 6 March 2018, Slowakische Republik (Slovak Republic) v. Achmea BV, Case C-284/16, EU:C:2018:158.
[2] Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018.
[3] Novenergia II – Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. The Kingdom of Spain, SCC Arbitration (2015/063), Award, 15 February 2018.

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