Blusun SA Jean-Pierre Lecorcier and Michael Stein v Italy - ICSID Case No. ARB/14/3 - Decision on Annulment - 13 April 2020
3. This case concerns an application for annulment by the Claimants ("Application for Annulment") for the alleged dismissal of claims on their merits pronounced by the Award dispatched to the Parties on December 27, 2016 (the "Award").
4. The Award related to a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID") on the basis of the 1994 Energy Charter Treaty (the "ECT"), as well as the Convention on the Settlement of Investment Disputes between States and nationals of other States (the "ICSID Convention").
5. The Claimants argued that the Tribunal which rendered the Award (the "Tribunal"), decided that it had jurisdiction over the claims brought by the Claimants against the Italian Republic, dismissed those claims on merits, and in doing so, the Tribunal inexplicably failed to consider the measure at the heart of one of those claims and on which the other claims relied in important respects.
6. Central to each claim advanced by the Claimants lies certain investments made concerning a solar energy project in the Puglia region of Italy: a 120-megawatt project, where plants were to be connected with each other by a medium-voltage grid, with electricity sub- stations constructed to connect that grid to the high-voltage grid. The project consisted of uniting approximately 120 individual solar plants of one megawatt each. 114 of the 120 plants were to be built in the municipality of Brindisi and the remaining six in the municipality of Mesagne. The project also required the construction of a network of underground cables spread over 370 kilometers. These cables formed two rings connecting the solar plants to each other, and to two substations. The Claimants acquired the shares of 12 local development companies which hold all of the relevant rights and permits for the plants via Eskosol S.R.L ("Eskosol"), an Italian company owned and controlled by Blusun (the "Project" or "Puglia project").
7. The dispute in the underlying arbitration related to certain regulatory and judicial measures adopted by the Italian Government, which in the Claimants' view frustrated their investments in the Puglia project.
8. The Claimants advanced three distinct legal claims in the original arbitration proceedings: (a) the first claim was for an alleged breach of Article 10(1), first sentence, of the ECT: such claim was advanced on the basis that in the Claimants' view, the Italian Government failed to encourage and create stable, equitable, favorable, and transparent conditions for the Claimants' Investments in the Puglia project (the "Legal Instability Claim"); (b) the second claim was for an alleged breach of Article 10(1), second sentence, of the ECT: this claim was advanced on the basis that in the Claimants' view, Italy failed to accord fair and equitable treatment to their investments, namely regarding certain legitimate expectations (the "Legitimate Expectations Claim"); and (c) the third claim was advanced on the basis that in the Claimants' view the regulatory measures and judicial decisions adopted by the Italian Constitutional Court, the Italian Government and the Commune had an effect equivalent to nationalization or expropriation within the meaning of Article 13(1) of the ECT (the "Expropriation Claim").
9. The Claimants seek annulment of the entirety of the Award's alleged dismissal of the Claims on their Merits, on the basis of Article 52(1) (b), (d) and (e) of the ICSID Convention. Such grounds of Article 52(1) of the ICSID Convention respectively state as follows: (i) the Tribunal manifestly exceeded its powers; (ii) the Tribunal seriously departed from a fundamental rule of procedure; and (iii) that the Award has failed to state the reasons on which it is based.
10. The Application for Annulment submitted by the Claimants mainly rests on the foregoing legal grounds. Each one of the legal grounds of Article 52(1) of the ICSID Convention, in the present Annulment proceedings, has the exact same factual basis. These are the alleged dismissal of the Tribunal by not considering and addressing the DIA Certificates of Conformity issued by the Municipality of Brindisi, while adjudicating the Legitimate Expectation claim. This is precisely the omission addressed by the Claimants in their Application for Annulment and it is central to the second claim brought by the Claimants in the original arbitration proceedings, their Legitimate Expectations Claim. 2 This, according to Claimants, breaches Article 52(1) (b) (d) and (e) of the ICSID Convention. The Committee will, therefore, examine these grounds.
339. For the reasons stated supra, the ad hoc Committee decides as follows:
(i) Blusun S.A, Jean Pierre Lecorcier and Michael Stein's Request for Annulment is denied.
(ii) It is not necessary to rule on the request of Italy for immediate termination of the proceedings considering the decision of this Committee in subparagraph (i) abovementioned.
(iii) The Claimants shall bear the costs, fees and expenses of these proceedings, i.e. those incurred by the Respondent, ICSID and members of this ad hoc Committee.
 Memorial on Annulment, para. 100.