Content Join OGEMID
 
  • Linkedin
  • Twitter
  • Rss

Transnational Dispute Management

Skip navigation

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

Join OGEMID

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About TDM
    4. About TDM
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & r docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • Audiovisual library AV library
    1. Home
    2. Audiovisual library
    3. Audiovisual Library
    4. Audiovisual Library
    5. TDM/OGEMID Interviews
    6. TDM/OGEMID Interviews
    7. Conference presentations
    8. Conference presentations
  • OGEMID OGEMID
    1. Home
    2. OGEMID
    3. About OGEMID
    4. About OGEMID
    5. Suggest a topic
    6. Suggest a topic
    7. Guest programme
    8. Guest programme
    9. Seminar programme
    10. Seminar programme
    11. Browse archive
    12. Browse archive
    13. Search
    14. Search
    15. Join
    16. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • Subscribe
Home > Legal & Regulatory docs.

RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v Kingdom of Spain - ICSID Case No. ARB/13/30 - Decision on Jurisdiction - 6 June 2016

  • Sign in to download document
Country
  • Luxembourg
  • Spain
  • Jersey
Year

2016

Summary

RREEF v. Spain (ICSID Case No. ARB/13/30)

Summary by Natalia Charalampidou, citation details below.

The decision on jurisdiction was issued on June 6, 2016 and it is publicly available only in a redacted form. The present proceedings are still pending.

Invoked instruments, purported breaches & administering institution:

This is an ongoing arbitration under the ECT. The specific standards that have allegedly been breached by respondent are not stated in the decision on jurisdiction. The dispute was submitted to an ICSID arbitral tribunal according to Art. 26(4)(a)(i) of the ECT.

Any third parties:

The European Commission filed an application to intervene as non-disputing party under ICSID Arbitration Rule 37(2) on November 14, 2014 and December 9, 2015. Both were rejected on February 5, 2015 and January 14, 2016 respectively (¶¶ 16, 20, 31-32).

Factual background:

Claimants are RREEF Infrastructure (G.P.) Limited ("RREEF Ltd"), a company incorporated in Jersey, and RREEF Pan-European Infrastructure Two Lux S.à.r.l. ("RREEF Sarl") (¶ 1, 90). No further information on claimants is available at this stage of the proceedings. Yet, in Antin v. Spain (see under No. 25 below) it is mentioned that RREEF Ltd is a company of the Deutsche Bank group (see Antin v. Spain, final award ¶ 109). Respondent is the Kingdom of Spain ("Spain") (¶ 7). Nothing further on the factual background is explained.

Tribunal's conclusions:

The tribunal addressed the following jurisdictional objections put forward by respondent: (a) inapplicability of the ECT to disputes concerning intra-EU investments; (b) claim on alleged damages available solely to companies that own the plants and not claimants; (c) lack of claimants' qualification as investors under Art. 1(7) of the ECT and of the particular investment as investment under Art. 1(6) of the ECT; (d) tax measures excluded under Art. 21 of the ECT; (e) failure to comply with the amicable settlement and cooling-off period requirements under Art. 26 of the ECT (¶ 35).

Regarding the first objection, that of the "supremacy" of EU law, the tribunal noted that the main issue was whether such alleged supremacy prevailed over norms of international law (¶ 71). After clarifying, in alignment to Electrabel, that any question of "hierarchy" of laws applicable by tribunals must be determined by public international law and thus in any such event the ECT prevailed, the tribunal accepted the argument of treaty interpretation in such a way as not to contradict each other, contrary to Electrabel. It reached this conclusion on the base of the CJEU's judgment on Commission v. Germany of September 10, 1996 and on the fact that the - then - European Communities played a predominant role in promoting and negotiating the ECT. It also added that this approach is consistent with Art. 207(3) of the TFEU (¶ 76). Still, it did not explain the grounds supporting this deviation from the rules enshrined in the VCLT. Further, it did not find any disharmony or conflict between the ECT and EU law and therefore established no need for an implicit or explicit disconnection clause, citing Charanne (¶¶ 82, 83). In fact, it adjudged that "EU law does not and cannot trump public international law" (¶ 87).

The second objection contained two arguments, which the tribunal decided to address separately. The first one concerned the classical question about the standing of foreign shareholders to claim compensation (¶ 115). It referred to the restrictive definition of shareholders' rights adopted by Barcelona Traction and Diallo, whereas a wider approach was adopted by CMS and RosInvestCo, but Poštovà Banka v Greece illustrated a more cautious rule. Yet, in the present case it was unnecessary for the tribunal to take position in view of Art. 1(6) of the ECT, which removed any possible doubt regarding claimants' jus standi, citing Azurix (¶¶ 120-123). The second argument of the second objection referred to the avoidance of double recovery. This is a question for quantum, the tribunal decided. Thus, the "damages" objection was dismissed (¶¶ 126-127).

Turning to the objections ratione personae and ratione materiae the tribunal found that in this case claimants met the definition of investors and investment under the ECT. Respondent purported the application of additional criteria to the meaning of investment, although no textual or other basis was available. Therefore, this argument was rejected. Similarly, the argument of "shell company" was not convincing as no basis under international law exists to accord such commercial entities any less entitlement to the protections offered under an investment treaty than any other commercial entity, the tribunal noted (¶¶ 145, 147, 157, 160).

The tax objection based on Art. 21 of the ECT was referred to the merits, as a careful investigation of the circumstances and of the effects of the challenged measures was needed and such investigation could not be made at this preliminary stage (¶¶ 196-197).

Finally, after taking note of Ethyl Corporation and Enron (Jurisdiction), the tribunal decided that the amicable settlement and cooling-off period requirements had been met.

Synopsis:

The factual background of this case, which is still pending, is not publicly available. Neither are the alleged violations of the ECT. With reference to the jurisdictional objections, the tribunal made the following findings. The objection based on the "supremacy" of EU law was not altogether successful. The tribunal, after accepting the argument of treaty interpretation in such a way as not to contradict each other without though providing the reasons for deviating from the VCLT, found no disharmony or conflict between the ECT and EU law. The tribunal also dismissed the second objection of shareholders having no standing for claiming compensation, in view of the clear language of Art. 1(6) of the ECT. On the same reasoning, the tribunal rejected the objection of claimants being a "shell company". It then deferred its decision on the tax objection (Art. 21 of the ECT) to the phase of the merits.

Source

This summary comes from the following paper:

N. Charalampidou; "Range of Disputes under the Energy Charter Treaty"
OGEL 5 (2018), www.ogel.org/article.asp?key=3798

N. Charalampidou; "Range of Disputes under the Energy Charter Treaty" TDM 7 (2018), URL: www.transnational-dispute-management.com/article.asp?key=2622

The paper is part of the joint OGEL/TDM/ArbitralWomen Special Issue:

OGEL 5 (2018) - OGEL/TDM/ArbitralWomen - Strategic Considerations in Energy Disputes
www.ogel.org/journal-browse-issues-toc.asp?key=78

TDM 7 (2018) - OGEL/TDM/ArbitralWomen - Strategic Considerations in Energy Disputes
www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=82

To download this document you need to be a subscriber

Sign in

Forgot password?

Sign in

Subscribe

Fill in the registration form and answer a few simple questions to receive a quote.

Subscribe now

Documents missing? Documents to share? Let us know!

If you know of documents which are currently missing from our Legal & Regulatory database do let us know. You can send them directly to us for inclusion in the database, anonymously or otherwise.
Learn more here

Call for contributions

TDM Call for Papers: Sanctions and International Arbitration: Impact on Substantive and Procedural Issues

Ali Burney, Rinat Gareev, Kiran Nasir Gore, Dini Sejko, Prof. Joel Slawotsky, May Tai

  • Ali Burney
  • Rinat Gareev
  • Kiran Gore
  • Dr Dini Sejko
  • Prof. Joel Slawotsky
  • May Tai

TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

John P. Gaffney, Dr. iur Richard Happ,
Lucia Raimanova, Anna-Maria Tamminen, Dr. Catharine Titi

  • John P. Gaffney
  • Dr. iur Ricard Happ
  • Lucia Raimanova
  • Anna-Maria Tamminen
  • Dr. Catharine Titi

TDM Call for Papers: International Investment Arbitration - Environmental Protection and Climate Change Issues

Professor Dr A F M Maniruzzaman, Wendy J. Miles QC, Carla Lewis, Dr Stephen Minas

  • Professor Dr A F M Maniruzzaman
  • Wendy J. Miles QC
  • Carla Lewis
  • Dr Stephen Minas

TDM Call for Papers: The African Continental Free Trade Agreement (AfCFTA)

J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye

  • Prof. Julien Chaisse
  • Dr. Jedrzej Gorski
  • Prof. Emmanuel Laryea
  • Prof. Makane Moïse Mbengue
  • Kehinde Olaoye
  • More
  • Contribute

Advance publication

Have ICSID Tribunals Fallen in Error in Interpreting Most Favored Nation Clauses

17 May 2023

N.E. Piracha

  • N.E. Piracha

The Law Commission’s Second Consultation Paper on the English Arbitration Act 1996: Are the Reforms “Fit for Purpose”?

12 May 2023

L. Reimschussel

  • L. Reimschussel

The Legitimacy of the MPIA's Decisions in the WTO Dispute Settlement System

3 May 2023

T. Ferreira Almeida

  • T. Ferreira Almeida
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGEMID, the leading on-line discussion platform for international dispute resolution?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Transnational Dispute Management Journal (TDM, ISSN 1875-4120) and OGEMID listserv focus on recent developments in the area of (investment) arbitration and dispute management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Read our Terms & Conditions here, and our Privacy Policy here.

About TDM

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Oil, Gas & Energy Law Intelligence (OGEL)

© 2004 - 2023. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help