Case Details

RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Kingdom of Spain (ICSID Case No. ARB/14/34)

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):

RWE Innogy Aersa S.A.U. (Spanish), RWE Innogy GmbH (German)
Respondent(s):

Kingdom of Spain (Spanish)
Date Registered:

December 23, 2014
Date of Constitution of Tribunal:

November 4, 2015

Composition of Tribunal

President:

Samuel WORDSWORTH (British) - Appointed by the Secretary-General
Arbitrators:

Judd L. KESSLER (U.S.) - Appointed by the Claimant(s)
Anna JOUBIN-BRET (French) - Appointed by the Respondent(s)

Initial Composition of Tribunal

President:

Samuel WORDSWORTH (British) - Appointed by the Secretary-General
Arbitrators:

Judd L. KESSLER (U.S.) - Appointed by the Claimant(s)
Anna JOUBIN-BRET (French) - Appointed by the Respondent(s)
Reconstituted:

January 12, 2018: Anna JOUBIN-BRET (French) appointed following the resignation of Anna JOUBIN-BRET (French)

Party Representatives

Claimant(s):

Allen & Overy, Madrid, Spain
Gibson, Dunn & Crutcher, London, U.K.
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:

December 18, 2020 - The Tribunal renders its award; attached to the award is a separate opinion by arbitrator Judd L. Kessler.

(b) Annulment Proceeding

Applicant(s)/Requesting Party(ies):

Respondent(s)
Date Registered:

April 19, 2021 (Respondent(s))
Date of Constitution of ad hoc Committee:

May 28, 2021

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

President:

Carita WALLGREN-LINDHOLM (Finnish)
Members:

Álvaro Rodrigo CASTELLANOS HOWELL (Guatemalan)
Colm Ó HOISÍN (Irish)

Party Representatives

Claimant(s):

Allen & Overy, Madrid, Spain
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 20, 2024 - The ad hoc Committee issues its decision on annulment.

(a) Original Proceeding

Published Decisions

Decision on jurisdiction, liability and certain issues of quantum (English;)

Award of the Tribunal

Available on the ICSID Website

Award of the Tribunal (December 18, 2020) English (Original); Spanish (Original)

(b) Annulment Proceeding

Published Decisions

Decision on Annulment (English;)

(a) Original Proceeding

Date	Development
December 23, 2014	The Secretary-General registers a request for the institution of arbitration proceedings.
April 3, 2015	Following appointment by the Claimant, Judd L. Kessler (U.S.) accepts his appointment as arbitrator.
June 3, 2015	Following appointment by the Respondent, Anna Joubin-Bret (French) accepts her appointment as arbitrator.
November 3, 2015	Following appointment by the Secretary-General, Samuel Wordsworth (British) accepts his appointment as presiding arbitrator.
November 4, 2015	The Tribunal is constituted in accordance with Article 37(2)(a) of the ICSID Convention. Its members are: Samuel Wordsworth (British), President, appointed by the Secretary-General pursuant to the parties’ agreement; Judd Kessler (U.S.), appointed by the Claimants; and Anna Joubin-Bret (French), appointed by the Respondent.
December 14, 2015	The Tribunal holds a first session by telephone conference.
December 15, 2015	The Tribunal issues Procedural Order No. 1 concerning procedural matters. A non-disputing party files an application pursuant to ICSID Arbitration Rule 37(2).
January 8, 2016	Each party files observations on the non-disputing party’s application.
February 10, 2016	The Tribunal issues Procedural Order No. 2 concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
February 26, 2016	The Claimants file a memorial on the merits.
May 20, 2016	The Respondent files a counter-memorial on the merits and a memorial on jurisdiction.
June 21, 2016	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
July 5, 2016	Each party files observations on the non-disputing party’s application.
July 13, 2016	The Tribunal issues Procedural Order No. 3 concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
July 22, 2016	Following exchanges between the parties, the parties file a joint request for the Tribunal to decide on production of documents.
August 11, 2016	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
September 23, 2016	The Tribunal issues Procedural Order No. 4 concerning production of documents.
October 25, 2016	The Tribunal issues Procedural Order No. 5 concerning production of documents.
November 11, 2016	The Claimants file a reply on the merits and a counter-memorial on jurisdiction.
November 24, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
November 28, 2016	The Claimants file observations on the Respondent’s request of November 24, 2016.
November 29, 2016	The Respondent files a response to the Claimants’ observations of November 28, 2016.
December 5, 2016	The Claimants file further observations on the request for the admissibility of new evidence.
January 19, 2017	The Respondent files a rejoinder on the merits and a reply on jurisdiction.
February 2, 2017	The Respondent files a further request for the Tribunal to decide on the admissibility of new evidence.
February 9, 2017	The Claimants file observations on the Respondent’s further request of February 2, 2017.
February 13, 2017	The Tribunal poses questions to the Respondent on the Respondent’s request of November 24, 2016.
February 15, 2017	The Claimants file a request for the Tribunal to decide on confidentiality of evidence.
February 20, 2017	The Respondent files observations on the Claimants’ request of February 15, 2017.
February 24, 2017	The Tribunal decides on the further request on the admissibility of new evidence and on the confidentiality of evidence.
February 27, 2017	The Respondent files answers to the questions posed by the Tribunal on February 13, 2017.
March 2, 2017	The Claimants file a rejoinder on jurisdiction.
March 13, 2017	The Claimants file answers to the questions posed by the Tribunal on February 13, 2017.
March 22, 2017	The Tribunal issues Procedural Order No. 6 concerning procedural matters.
March 30, 2017	The Tribunal holds a pre-hearing organizational meeting with the parties by telephone conference.
March 31, 2017	The Tribunal issues Procedural Order No. 7 concerning procedural matters.
April 19, 2017	The Claimants file a request for the Tribunal to decide on the admissibility of new evidence.
April 24, 2017	The Claimants file a skeleton brief.
April 25, 2017	The Respondent files observations on the Claimants’ request of April 19, 2017, including a request for the Tribunal to decide on the admissibility of new evidence.
April 27, 2017	The Claimants files observations on the Respondent’s request of April 25, 2017.
April 28, 2017	The Tribunal decides on the admissibility of new evidence.
May 5, 2017	The Respondent files a skeleton brief.
May 8, 2017	The Claimants file a request for the Tribunal to decide on the admissibility of new evidence.
May 9, 2017	The Respondent files observations on the Claimants’ request of May 8, 2017, including a further request for the Tribunal to decide on the admissibility of new evidence. The Tribunal decides on the admissibility of new evidence.
May 15, 2017 - May 19, 2017	The Tribunal holds a hearing on jurisdiction and the merits in Paris.
May 26, 2017	The Tribunal poses questions to the parties.
July 11, 2017	The Claimants file a request for the Tribunal to decide on the admissibility of new evidence.
July 12, 2017	The Respondent files observations on the Claimants’ request of July 11, 2017.
July 13, 2017	The Tribunal decides on the admissibility of new evidence.
July 28, 2017	Each party files a post-hearing brief including answers to the questions posed by the Tribunal on May 26, 2017.
July 30, 2017	The Claimants file a request for the exclusion of evidence.
July 31, 2017	The Respondent files observations on the Claimants’ request for the exclusion of evidence.
July 31, 2017	The Tribunal decides on the exclusion of evidence.
August 7, 2017	The Claimants file a revised post-hearing brief.
November 23, 2017	The Respondent files a request for the Tribunal to decide on the admissibility of new documents.
November 30, 2017	Following the resignation of arbitrator Anna Joubin-Bret, the Secretary-General notifies the parties of the vacancy on the Tribunal and the proceeding is suspended pursuant to ICSID Arbitration Rule 10(2).
November 30, 2017	The Claimants file observations on the Respondent’s request of November 23, 2017.
January 12, 2018	The Tribunal is reconstituted. Its members are: Samuel Wordsworth (British), President, appointed by the Secretary-General pursuant to the parties’ agreement; Judd Kessler (U.S.), appointed by the Claimants; and Anna Joubin-Bret (French), appointed by the Respondent in accordance with ICSID Arbitration Rule 11(1). The proceeding is resumed pursuant to ICSID Arbitration Rule 12.
January 12, 2018	Following the resignation of Anna Joubin-Bret, Anna Joubin-Bret (French) accepts her appointment as arbitrator, appointed by the Respondent in accordance with ICSID Arbitration Rule 11(1).
January 14, 2018	The Tribunal decides on the admissibility of new documents.
March 2, 2018	The Claimants file a request for the Tribunal to decide on the admissibility of new documents.
March 9, 2018	The Respondent files observations on the Claimants’ request of March 2, 2018 and a further request for the Tribunal to decide on the admissibility of new documents.
March 13, 2018	The Claimants file a response to the Respondent’s observations and further request of March 9, 2018.
March 15, 2018	The Tribunal decides on the admissibility of new documents.
March 23, 2018	The Claimants file a request for the exclusion of evidence.
March 23, 2018	The Respondent files observations on the Claimants’ request for the exclusion of evidence.
March 29, 2018	The Tribunal decides on the exclusion of evidence.
May 16, 2018	The non-disputing party files a communication regarding its written submission of August 11, 2016.
May 29, 2018	The Claimants file a request for the Tribunal to decide on the admissibility of new documents.
June 5, 2018	The Respondent files observations on the Claimants’ request of May 29, 2018.
June 6, 2018	The Tribunal decides on the admissibility of new documents.
June 7, 2018	Each Party files observations on the non-disputing party’s communication of May 16, 2018.
June 22, 2018	The Tribunal issues a decision concerning the non-disputing party’s application of May 16, 2018.
July 13, 2018	The non-disputing party files a written submission updating its submission of August 11, 2016.
July 25, 2018	The Respondent files observations on the non-disputing party’s written submission of July 13, 2018.
August 6, 2018	The Claimants file observations on the non-disputing party’s written submission of July 13, 2018.
August 10, 2018	The Claimants file a request for the Tribunal to decide on the admissibility of new documents.
August 17, 2018	The Respondent files observations on the Claimants’ request of August 10, 2018.
August 20, 2018	The Tribunal decides on the admissibility of new documents.
September 12, 2018	The Claimants file a request for the Tribunal to decide on the admissibility of new documents.
September 21, 2018	The Respondent files observations on the Claimants’ request of September 12, 2018.
September 23, 2018	The Tribunal decides on the admissibility of new documents.
January 25, 2019	The Respondent files a request for the Tribunal to decide on the admissibility of a new document.
January 30, 2019	The Claimants file observations on the Respondent’s request for the Tribunal to decide on the admissibility of a new document.
February 1, 2019	The Tribunal decides on the Respondent’s request of January 25, 2019.
February 26, 2019	Each party files a submission on costs.
April 11, 2019	The Respondent files a request for the Tribunal to decide on the admissibility of new a new document.
April 22, 2019	The Claimants file observations on the Respondent’s request of April 11, 2019.
April 25, 2019	The Tribunal issues a decision on the admissibility of a new document.
December 30, 2019	The Tribunal issues a decision on jurisdiction, liability, and certain issues of quantum.
April 17, 2020	The parties’ experts file a joint expert report on quantum.
May 1, 2020	Each party files observations on the parties’ experts’ joint expert report on quantum of April 17, 2020.
May 19, 2020	Each party files further observations on the parties’ experts’ joint expert report on quantum of April 17, 2020.
November 16, 2020	The Tribunal declares the proceeding closed in accordance with ICSID Arbitration Rule 38(1).
December 18, 2020	The Tribunal renders its award; attached to the award is a separate opinion by arbitrator Judd L. Kessler.

(b) Annulment Proceeding

Date	Development
April 19, 2021	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.
May 28, 2021	The ad hoc Committee is constituted in accordance with Article 52(3) of the ICSID Convention. Its members are: Carita Wallgren-Lindholm (Finnish), President; Alvaro Rodrigo Castellanos Howell (Guatemalan); and Colm Ó hOisín (Irish); all members appointed by the Chairman of the Administrative Council.
June 25, 2021	The Kingdom of Spain files a request to continue the stay of enforcement of the award.
July 13, 2021	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
July 16, 2021	The ad hoc Committee holds a first session by videoconference.
July 16, 2021	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
July 27, 2021	The ad hoc Committee issues Procedural Order No. 1 concerning procedural matters.
September 7, 2021	The Kingdom of Spain files a submission in support of the continuation of the stay of enforcement of the award.
September 24, 2021	The Kingdom of Spain files a memorial on annulment.
September 28, 2021	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file a rejoinder on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
October 1, 2021	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file a request for the exclusion of evidence.
October 14, 2021	The Committee issues Procedural Order No. 2 concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
October 22, 2021	The ad hoc Committee holds a hearing on the stay of enforcement of the award by video conference.
November 3, 2021	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
November 19, 2021	The ad hoc Committee issues Procedural Order No. 3 concerning exclusion of evidence.
November 22, 2021	The ad hoc Committee issues a decision on the continuation of the stay of enforcement of the award.
November 22, 2021	The ad hoc Committee issues a decision on the continuation of the stay of enforcement of the award, with reasons to follow.
December 2, 2021	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file a counter-memorial on annulment.
February 2, 2022	The Kingdom of Spain files a reply on annulment.
February 28, 2022	The ad hoc Committee issues a decision on the continuation of the stay of enforcement of the award, with reasons.
March 30, 2022	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file a rejoinder on annulment.
May 10, 2022	The Kingdom of Spain files a request for the Committee to decide on the admissibility of new documents.
May 17, 2022	RWE Innogy GmbH and RWE Innogy Aersa S.A.U.file observations on the Kingdom of Spain’s request of May 10, 2022.
May 24, 2022	The ad hoc Committee decides on the admissibility of new documents.
May 31, 2022	The ad hoc Committee issues Procedural Order No. 4 concerning procedural matters.
June 20, 2022	The ad hoc Committee holds a pre-hearing organizational meeting with the parties by video conference.
June 22, 2022	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new documents.
June 22, 2022	The ad hoc Committee issues Procedural Order No. 5 concerning the organization of the hearing.
June 24, 2022	RWE Innogy GmbH and RWE Innogy Aersa S.A.U.file observations on the Kingdom of Spain’s request of June 22, 2022, and a request for the ad hoc Committee to decide on the admissibility of new documents.
June 26, 2022	The Kingdom of Spain files observations on RWE Innogy GmbH and RWE Innogy Aersa S.A.U.’s request of June 24, 2022.
June 28, 2022	The ad hoc Committee decides on the admissibility of new documents.
July 5, 2022 - July 6, 2022	The ad hoc Committee holds a hearing on annulment in The Hague.
September 26, 2022	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new documents.
October 3, 2022	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file observations on the Kingdom of Spain’s request of September 26, 2022.
October 7, 2022	The ad hoc Committee decides on the admissibility of new documents.
October 13, 2022	Each party files a submission on costs.
December 20, 2022	The Kingdom of Spain files a request for the ad hoc Commitee to decide on the admissibility of new evidence.
January 3, 2023	The ad hoc Committee decides on the admissibility of new documents.
January 3, 2023	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file observations on the Kingdom of Spain’s request of December 20, 2022.
August 9, 2023	The Kingdom of Spain files a request for the Tribunal to decide on the admissibility of new documents.
August 17, 2023	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file observations on the Kingdom of Spain’s request of August 9, 2023.
August 25, 2023	The ad hoc Committee decides on the admissibility of new documents.
November 22, 2023	The ad hoc Committee declares the proceeding closed in accordance with ICSID Arbitration Rules 38(1) and 53.
November 28, 2023	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of a new document.
December 4, 2023	RWE Innogy GmbH and RWE Innogy Aersa S.A.U. file observations on the Kingdom of Spain’s request of November 28, 2023.
December 12, 2023	The ad hoc Committee issues a decision on the admissibility of a new document.
March 20, 2024	The ad hoc Committee issues its decision on annulment.