AES Solar Energy Cooperatief UA et al v Kingdom of Spain - United States District Court for the District of Columbia Civil Action No 2021-3249 - Memorandum Opinion - 29 March 2023
BLASKET RENEWABLE INVESTMENTS LLC
THE KINGDOM OF SPAIN,
March 29, 2023
In 2007, two Dutch companies, AES Solar Energy Cooperatief U.A. and Ampere Equity Fund B.V. (collectively, the "Companies"), invested in renewable energy projects in order to take advantage of favorable tax incentives offered by the Kingdom of Spain ("Spain"). However, in the wake of the 2008 financial crisis, Spain implemented reforms in its energy sector that had the effect of reducing the value of the Companies' investment.
The Companies invoked the arbitration provision of the Energy Charter Treaty, to which both Spain and the Netherlands are signatories, and were awarded compensation for their losses by an arbitral tribunal seated in Switzerland. The Companies have petitioned this Court to confirm their award. Spain has moved to dismiss the petition on multiple grounds, including a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act.
Because Spain's standing offer to arbitrate was void as to the Companies under the European Union law to which both Spain and the Companies are subject and which applied to the dispute by the terms of the Energy Charter Treaty itself, no valid agreement to arbitrate exists, and this Court therefore lacks the subject matter jurisdiction necessary to confirm the tribunal's award. Accordingly, I will GRANT Spain's motion and dismiss the petition.