Case Details

Cube Infrastructure Fund SICAV and others v. Kingdom of Spain (ICSID Case No. ARB/15/20)

Subject of Dispute:

Renewable energy generation enterprise
Economic Sector:

Electric Power & Other Energy
Instrument(s) Invoked:

ECT (Energy Charter Treaty)
Applicable Rules:

ICSID Convention - Arbitration Rules

(a) Original Proceeding

Claimant(s)/Nationality(ies):

Cube Infrastructure Fund SICAV (Luxembourg), Cube Energy S.C.A. (Luxembourg), Demeter Partners S.A. (French), Demeter 2 FPCI (French), Cube Infrastructure Managers S.A. (Luxembourg)
Respondent(s):

Kingdom of Spain (Spanish)
Date Registered:

June 1, 2015
Date of Constitution of Tribunal:

December 8, 2015

Composition of Tribunal

President:

Vaughan LOWE (British) - Appointed by the Parties
Arbitrators:

James SPIGELMAN (Australian) - Appointed by the Claimant(s)
Christian TOMUSCHAT (German) - Appointed by the Respondent(s)

Party Representatives

Claimant(s):

Gómez-Acebo & Pombo, Madrid, Spain
King & Spalding, Paris, France and Houston, TX, U.S.A.
Respondent(s):

Abogacía General del Estado, The Ministry of Justice of the Government of Spain, Madrid, Spain
Language(s) of Proceeding:

English,Spanish
Status of Proceeding:

Concluded
Outcome of Proceeding:

July 15, 2019 - The Tribunal renders its award.

(b) Annulment Proceeding

Applicant(s)/Requesting Party(ies):

Respondent(s)
Date Registered:

November 18, 2019 (Respondent(s))
Date of Constitution of ad hoc Committee:

December 18, 2019

Composition of ad hoc Committee (Appointed by the Chairman of the Administrative Council)

President:

Jacomijn J. VAN HAERSOLTE-VAN HOF (Dutch)
Members:

Álvaro Rodrigo CASTELLANOS HOWELL (Guatemalan)
Timothy J. FEIGHERY (Irish, U.S.)

Party Representatives

Claimant(s):

Gómez-Acebo & Pombo, Madrid, Spain
King & Spalding, Paris, France and Houston, TX, U.S.A.
Respondent(s):

Abogacía General del Estado, The Ministry of Justice of the Government of Spain, Madrid, Spain
Language(s) of Proceeding:

English,Spanish
Status of Proceeding:

Concluded
Outcome of Proceeding:

March 28, 2022 - The ad hoc Committee issues its decision on annulment.

(a) Original Proceeding

Published Decisions

Decision on Jurisdiction, Liability and Partial Decision on Quantum (February 19, 2019)

Separate and Partial Dissenting Opinion of Professor Christian Tomuschat (February 19, 2019)

Award of the Tribunal (June 26, 2019)

(b) Annulment Proceeding

Published Decisions

Decision on the EU Commission’s Application for Leave to Intervene as a Non-Disputing Party (April 2, 2020)

Decision on the Continuation of the Provisional Stay of Enforcement of the Award (April 17, 2020)

(a) Original Proceeding

Date	Development
June 1, 2015	The Secretary-General registers a request for the institution of arbitration proceedings.
August 7, 2015	Following appointment by the Claimants, James Spigelman (Australian) accepts his appointment as arbitrator.
October 31, 2015	Following appointment by the Respondent, Christian Tomuschat (German) accepts his appointment as arbitrator.
December 8, 2015	The Tribunal is constituted in accordance with Article 37(2)(a) of the ICSID Convention. Its members are: Vaughan Lowe (British), President, appointed by agreement of the parties; James Spigelman (Australia), appointed by the Claimants; and Christian Tomuschat (German), appointed by the Respondent.
December 8, 2015	Following appointment by agreement of the parties, Vaughan Lowe (British) accepts his appointment as presiding arbitrator.
February 5, 2016	The Tribunal holds a first session by telephone conference.
February 22, 2016	The Tribunal issues Procedural Order No. 1 concerning procedural matters.
May 9, 2016	The Claimants file a memorial on the merits.
July 29, 2016	The Respondent files a counter-memorial on the merits and a memorial on jurisdiction.
November 4, 2016	The parties file a request for the Tribunal to decide on production of documents.
November 30, 2016	The Tribunal issues Procedural Order No. 2 concerning production of documents.
February 27, 2017	The Claimants file a reply on the merits and a counter-memorial on jurisdiction.
April 11, 2017	The Tribunal issues Procedural Order No. 3 concerning production of documents.
April 21, 2017	The Respondent files a rejoinder on the merits and a reply on jurisdiction.
June 19, 2017	The Claimants file a rejoinder on jurisdiction.
September 18, 2017	The Tribunal holds a pre-hearing organizational meeting with the parties by telephone conference.
October 6, 2017	The Tribunal issues Procedural Order No. 4 concerning the organization of the hearing.
October 9, 2017 - October 13, 2017	The Tribunal holds a hearing on jurisdiction and the merits in Paris.
January 30, 2018	The Claimants file a request for the Tribunal to decide on the admissibility of new evidence.
January 31, 2018	Each party files a post-hearing brief.
February 9, 2018	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
March 9, 2018	The Tribunal decides on the Claimants’ request of January 30, 2018, and the Respondent’s request of February 9, 2018.
October 31, 2018	A non-disputing party files an application pursuant to ICSID Arbitration Rule 37(2).
November 1, 2018	The Tribunal issues a decision on the non-disputing party’s application of October 31, 2018.
November 12, 2018	The Tribunal declares the proceeding closed in accordance with ICSID Arbitration Rule 38(1).
December 4, 2018	The Claimants file a submission on costs.
January 11, 2019	The Tribunal reopens the proceeding in accordance with ICSID Arbitration Rule 38(2).
January 15, 2019	The Respondent files a request for the Tribunal to decide on the admissibility of a new document.
January 28, 2019	The Tribunal decides on the Respondent’s request of January 28, 2019.
February 19, 2019	The Tribunal issues a decision on jurisdiction, liability and a partial decision on quantum; attached to the decision is a separate and partial dissenting opinion by arbitrator Christian Tomuschat.
April 1, 2019	The Respondent files a submission on costs.
May 31, 2019	The Tribunal declares the proceeding closed in accordance with ICSID Arbitration Rule 38(1).
July 15, 2019	The Tribunal renders its award.

(b) Annulment Proceeding

Date	Development
November 18, 2019	The Secretary-General registers an application for annulment of the award filed by the Kingdom of Spain and notifies the parties of the provisional stay of enforcement of the award.
December 18, 2019	The ad hoc Committee is constituted in accordance with Article 52(3) of the ICSID Convention. Its members are: Jacomijn van Haersolte-van Hof (Dutch), President; Álvaro Castellanos Howell (Guatemalan); and Timothy Feighery (U.S./Irish); all members appointed by the Chairman of the Administrative Council.
January 9, 2020	The Kingdom of Spain files a request to continue the stay of enforcement of the award.
January 22, 2020	The ad hoc Committee holds a first session by telephone conference.
January 22, 2020	The ad hoc Committee issues Procedural Order No. 1 concerning procedural matters.
January 23, 2020	Cube Infrastructure Fund SICAV and others file observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
February 6, 2020	The Kingdom of Spain files a reply on the request to continue the stay of enforcement of the award.
February 24, 2020	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
February 28, 2020	Cube Infrastructure Fund SICAV and others file a rejoinder the request to continue the stay of enforcement of the award.
March 4, 2020	Each party files observations on the non-disputing party’s application.
March 16, 2020	Each party files observations on the other party’s submission of March 4, 2020.
April 2, 2020	The ad hoc Committee issues a decision concerning the non-disputing party’s application of February 24, 2020.
April 17, 2020	The ad hoc Committee issues a decision on the stay of enforcement of the award.
July 8, 2020	The Kingdom of Spain files a memorial on annulment.
September 16, 2020	Cube Infrastructure Fund SICAV and others file a counter-memorial on annulment.
November 9, 2020	The Kingdom of Spain files a reply on annulment.
January 8, 2021	Cube Infrastructure Fund SICAV and others file a rejoinder on annulment.
February 19, 2021	The ad hoc Committee holds a pre-hearing organizational meeting with the parties by video conference.
February 24, 2021	The ad hoc Committee issues Procedural Order No. 2 concerning the organization of the hearing.
March 5, 2021	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new evidence.
March 8, 2021	Cube Infrastructure Fund SICAV and others file observations on the Kingdom of Spain’s request of March 5, 2021.
March 10, 2021	The ad hoc Committee decides on the admissibility of new evidence.
March 16, 2021 - March 17, 2021	The ad hoc Committee holds a hearing on annulment by video conference.
April 19, 2021	Each party files a submission on costs.
April 19, 2021	Each party files a submission on costs.
August 16, 2021	Cube Infrastructure Fund SICAV and others file a request for the ad hoc Committee to decide on the admissibility of new evidence.
August 23, 2021	The Kingdom of Spain files observations on Cube Infrastructure Fund SICAV and others’ request of August 16, 2021.
August 31, 2021	The ad hoc Committee decides on the admissibility of new evidence.
September 9, 2021	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new evidence.
September 15, 2021	Cube Infrastructure Fund SICAV and others file observations on the Kingdom of Spain’s request of September 9, 2021.
September 20, 2021	The ad hoc Committee decides on the admissibility of new evidence.
March 3, 2022	The ad hoc Committee declares the proceeding closed in accordance with ICSID Arbitration Rules 53 and 38(1).
March 28, 2022	The ad hoc Committee issues its decision on annulment.