Published 29 November 2018
Six awards have now been handed down out of almost 40 investment treaty arbitrations arising from Spain's reforms in the renewable energy ("RE") sector. In four out of the six awards, tribunals held Spain liable and awarded damages to the claimants. Having critically assessed these decisions, in this paper I propose a modified conceptual approach to damages assessment, with the aim of achieving a more accurate estimate of loss and a more balanced award, in accordance with the applicable legal standard.
The arbitral decisions reviewed in this article are:
- Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Final Award of 4 May 2017 ("Eiser");
- Novenergia II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. The Kingdom of Spain, SCC Arbitration 2015/063, Final Arbitral Award of 15 February 2018 ("Novenergia");
- Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1, Award of 18 May 2018 ("Masdar"); and
- Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID Case No. ARB/13/31, Award of 15 June 2018 ("Antin").
(Two other arbitral cases against Spain - Charanne and Isolux - ended with the tribunals refusing to hold Spain liable for investment treaty violations. However, both these cases have certain features that distinguish them from the arbitrations that Spain has lost.)
Footnotes omitted from this introduction.