Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

InfraRed Environmental Infrastructure GP Limited and others v. Kingdom of Spain (ICSID Case No. ARB/14/12) - Annulment Proceeding

TABLE OF CONTENTS

I. INTRODUCTION

II. PROCEDURAL HISTORY

III. THE RELIEF REQUESTED BY SPAIN

IV. SUMMARY OF SPAIN'S SUBMISSIONS

A. BACKGROUND AND CONTEXT

B. MANIFEST EXCESS OF POWERS

1. Introduction
2. Manifest excess of powers by conferring protection to investors with unclean hands and by disregarding the application of international ius cogens and conferring protection on those who had acted on the basis of deceit and fraud in their investment process
3. Manifest excess of powers by not accepting the intra-EU objection and hearing a dispute between claimants from an EU Member State and an EU State
4. Manifest excess of powers by disregarding the applicable law: EU law must be applied to the merits of the dispute
5. Manifest excess of powers by making a manifestly incorrect application of the applicable law in assessing legitimate expectations
6. Manifest error of assessment by awarding damages contrary to its findings on quantum

C. FAILURE TO STATE REASONS

1. Introduction
2. Failure to state reasons as to why the Award disregards the application of EU law, both in the determination of lack of jurisdiction (to hear a dispute between an alleged investor from a EU Member State and a EU Member State) of the Tribunal, and to the merits
3. Failure to state reasons, or reasoning that is insufficient, inadequate and contradictory, in the determination of installed power
4. Failure to state reasons in relation to the decision of the date of the investment
5. Failure to state reasons for the Award in the conclusion on liability, in particular regarding the ECJ standard provided in Article 10(1) of the ECT
6. Expression of contradictory reasons in the alleged violation of the Claimants' expectations about the stability of the Original Regulatory Framework
7. Failure to state reasons when calculating damages
8. Failure to state reasons in relation to the evidentiary activity and the evaluation of the evidence developed in the Arbitration

D. SERIOUS DEPARTURE FROM A FUNDAMENTAL RULE OF PROCEDURE

1. Introduction
2. The breach of the basic principle of the burden of proof and the right of Spain to be heard

V. THE RELIEF REQUESTED BY INFRARED

VI. SUMMARY OF INFRARED'S SUBMISSIONS

A. SUMMARY OF THE DISPUTE AND THE AWARD

B. THERE ARE NO GROUNDS TO ANNUL THE AWARD

C. THERE ARE NO GROUNDS TO ANNUL THE AWARD ON THE BASIS OF MANIFEST EXCESS OF POWER

1. "Excess of power" must be self-evident and an error in the application of the law is not a ground for annulment
2. Spain's arguments related to the intra-EU objection cannot lead to the annulment of the Award
3. The Tribunal did not exceed its powers when applying international law to the dispute
4. The Tribunal correctly applied the proper law in assessing the legitimate expectations and in any case a misapplication of the law does not constitute a manifest excess of power
5. InfraRed is entitled to international protection

D. THERE ARE NO GROUNDS TO ANNUL THE AWARD ON THE BASIS THAT THE TRIBUNAL FAILED TO STATE REASONS

1. The standard of proof under Article 52(1)(e) is particularly high, and as long as reasons have been stated, even if incorrect or unconvincing, an award cannot be annulled
2. The Tribunal justified its decision on the rejection of the intra-EU objection, and on the application of international law (to jurisdiction and the merits)
3. The Tribunal reasoned its decision regarding the determination of installed power
4. The date of the investment was an uncontested matter during the underlying arbitration: Spain's counsel explicitly agreed that such date was July 28, 2011 in the Parties' List of Uncontested Facts
5. The Tribunal reasoned its conclusions on liability
6. The Tribunal reasoned its findings on damages

E. THERE ARE NO GROUNDS TO ANNUL THE AWARD ON THE BASIS OF A SERIOUS DEPARTURE FROM A FUNDAMENTAL RULE OF PROCEDURE

1. Spain avoids mentioning some important nuances of the legal standard under Article 52(1)(d) of the ICSID Convention
2. The InfraRed Tribunal did not depart from any fundamental rule of procedure
3. Spain's allegation of lack of impartiality is devoid of any basis

VII. ANALYSIS OF THE COMMITTEE

A. THE NATURE OF ANNULMENT PROCEEDINGS AND THE POWERS OF THE COMMITTEE B. MANIFEST EXCESS OF POWERS

1. Interpretation of Article 52(1)(b) of the ICSID Convention
a) Spain's submission
b) InfraRed's submission
c) Analysis of the Committee

2. Manifest excess of powers by conferring international protection to investors with unclean hands and by disregarding the application of international ius cogens and conferring protection on those who acted on the basis of deceit and fraud in their investment process
a) Spain's submission
b) InfraRed's submission
c) Analysis of the Committee

3. Manifest excess of powers by rejecting the intra-EU objection and hearing a dispute between an EU Member State and claimants from another EU Member State to which neither the United Kingdom nor Spain consented
a) Spain's submission
b) InfraRed's submission
c) Analysis of the Committee

4. Manifest excess of powers by disregarding the applicable international law, including the ECT itself, and by disregarding the application of the entire EU law
a) Spain's submission
b) InfraRed's submission
c) Analysis of the Committee

5. Manifest excess of powers by misapplying the applicable law to be taken into account in assessing legitimate expectations
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

6. Manifest excess of powers by awarding damages contrary to its findings on quantum
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

C. FAILURE TO STATE REASONS

1. Interpretation of Article 52(1)(e) of the ICSID Convention
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

2. Failure to state reasons for determining that the installed capacity was less than 50MW, thereby accepting the Claimants' misleading and fraudulent statement without justification, and provision of "manifestly insufficient, inadequate and blatantly contradictory reasons" for supporting installed capacity of less than 50MW
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

3. Failure to state reasons as to why the Award disregards the application of the applicable international law, including the ECT itself, and why the Award disregards the application of the entire EU law altogether
a) Spain's submission
b) InfraRed's submission
c) Analysis of the Committee

4. Failure to state reasons in the findings on liability which determine that there are serious deficiencies in the Award as to the interpretation of how Article 10(1) of the ECT is to be applied
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

5. Provision of contradictory reasons concerning the expectations of InfraRed regarding immutability of the regulatory framework under which they made their investment and the alleged breach thereof
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

6. Failure to state reasons in relation to the evidentiary activity and the evaluation of the evidence developed in the Arbitration
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

7. Regarding the determination on damages and the failure to state reasons for the Tribunal's valuation, including the date of the investment and the date of valuation
7.1. Regarding the determination of damages
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee
7.2. Regarding the failure to state reasons in relation to the decision for the date of the investment
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

D. SERIOUS DEPARTURE FROM A FUNDAMENTAL RULE OF PROCEDURE

VIII. 1. Interpretation of Article 52(1)(d) of the ICSID Convention
a) Spain's submissions
b) InfraRed's submission
c) Analysis of the Committee

2. The multiple procedural breaches in relation to the evidentiary activity and the evaluation of evidence in the Arbitration
a) Spain's submissions
(1) The right to be heard
(2) The rule of the burden of proof
(3) The duty of impartiality
b) InfraRed's submission
(1) The right to be heard
(2) The rule of the burden of proof
(3) The duty of impartiality
c) Analysis of the Committee
(1) The right to be heard
(2) The rule of the burden of proof
(3) The duty of impartiality

COSTS OF THE PROCEEDING

A. SPAIN'S STATEMENT ON COSTS
B. INFRARED'S STATEMENT ON COSTS
C. THE COSTS OF THE PROCEEDING
D. THE COMMITTEE'S DECISION ON COSTS

IX. DECISION

...

D. THE COMMITTEE'S DECISION ON COSTS

811. The Parties agree that the Committee is entitled to exercise its discretion under the ICSID Convention and Arbitration Rules when deciding on the issue of costs.

812. Spain's Application for Annulment has been dismissed in its entirety. The Committee has also dismissed Spain's Stay Request.

813. In the circumstances, the Committee considers that it is appropriate that the costs follow the event, although not in their entirety as the Application for Annulment has not been frivolous and the issues at stake were relevant enough to justify it.

814. Exercising its discretion, the Committee decides unanimously that:

(a) Spain shall bear its own legal costs and expenses;

(b) Spain shall reimburse Infrared 50% of their legal fees in the amount of EUR 343,358.125;

(c) InfraRed shall bear 50% of its legal fees and all of their other expenses;

(d) If the payment of EUR 343,358.125 is not made by Spain within 60 days from the notification of the Decision, the amount payable is to be increased by interest on the outstanding amount until full payment at the rate of 2% compounded annually; and

(e) Spain as the Applicant shall bear all of the costs of the proceeding, including the Committee's fees and expenses and the costs of ICSID.

IX. DECISION

815. For the reasons set out above, the Committee unanimously decides as follows:

(i) The Application for Annulment of the Award is dismissed in its entirety;

(ii) Spain shall reimburse InfraRed 50% of their legal fees in the amount of EUR 343,358.125;

(iii) If the payment of EUR 343,358.125 is not made by Spain within 60 days from the notification of this Decision, the amount payable is to be increased by interest on the outstanding amount until full payment at the rate of 2% compounded annually; and

(iv) Spain as the Applicant shall bear all of the costs of the proceeding, including the Committee's fees and expenses and the costs of ICSID.

Prof. Yuejiao Zhang
Dr. Karim Hafez
Prof. José-Miguel Júdice

10 June

Footnotes omitted