Case Details

Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain (ICSID Case No. ARB/13/36)

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):

EISER Infrastructure Limited (British), Energia Solar Luxembourg S.à r.l. (Luxembourg)
Respondent(s):

Kingdom of Spain (Spanish)
Date Registered:

December 23, 2013
Date of Constitution of Tribunal:

July 8, 2014

Composition of Tribunal

President:

John R. CROOK (U.S.) - Appointed by the Chairman of the Administrative Council
Arbitrators:

Stanimir A. ALEXANDROV (Bulgarian) - Appointed by the Claimant(s)
Campbell Alan MC LACHLAN (New Zealand) - Appointed by the Respondent(s)

Party Representatives

Claimant(s):

Allen & Overy, 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:

May 4, 2017 - The Tribunal renders its award.

(b) Annulment Proceeding

Applicant(s)/Requesting Party(ies):

Respondent(s)
Date Registered:

July 28, 2017
Date of Constitution of ad hoc Committee:

October 23, 2017

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

President:

Ricardo RAMÍREZ HERNÁNDEZ (Mexican)
Members:

Makhdoom Ali KHAN (Pakistani)
Dominique HASCHER (French)

Initial Composition of Tribunal

President:

Ricardo RAMÍREZ HERNÁNDEZ (Mexican) - Appointed by the Chairman of the Administrative Council
Arbitrators:

Teresa CHENG (Chinese) - Appointed by the Chairman of the Administrative Council
Dominique HASCHER (French) - Appointed by the Chairman of the Administrative Council
Reconstituted:

April 20, 2018: Makhdoom Ali KHAN (Pakistani) appointed following the resignation of Teresa CHENG (Chinese)

Party Representatives

Claimant(s):

Gibson, Dunn & Crutcher, London, U.K.
Respondent(s):

Abogacía General del Estado, The Ministry of Justice of the Government of Spain, Madrid, Spain
Curtis, Mallet-Prevost Colt & Mosle, Washington, D.C. and New York, NY, U.S.A., and Mexico City, Mexico
Language(s) of Proceeding:

English,Spanish
Status of Proceeding:

Concluded
Outcome of Proceeding:

June 11, 2020 - The ad hoc Committee issues its decision on annulment.

(c) Supplementary Decision Proceeding

Applicant(s)/Requesting Party(ies):

Claimant(s)
Date Registered:

July 31, 2020 (Claimant(s))

Party Representatives

Claimant(s):

Gibson Dunn, London, U.K., and New York, NY, U.S.A.
Respondent(s):

Abogacía General del Estado, The Ministry of Justice of the Government of Spain, Madrid, Spain
Curtis, Mallet-Prevost Colt & Mosle, New York, NY, U.S.A., and Mexico City, Mexico
Status of Proceeding:

Concluded
Outcome of Proceeding:

July 28, 2021 -
The ad hoc Committee issues its decision on the request for supplementary decision of the decision on annulment.

(d) Resubmission Proceeding

Applicant(s)/Requesting Party(ies):

Claimant(s)
Date Registered:

July 29, 2021
Date of Constitution of Tribunal:

May 16, 2022

Composition of Tribunal

President:

Andrea CARLEVARIS (Italian) - Appointed by the Chairman of the Administrative Council
Arbitrators:

O. Thomas JOHNSON (U.S.) - Appointed by the Claimant(s)
Marcelo G. KOHEN (Argentine) - Appointed by the Respondent(s)

Party Representatives

Claimant(s):

Debevoise & Plimpton, London, U.K.
A&O Shearman, 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:

Pending
Latest Development:

October 28, 2024 - The Tribunal decides on the Respondent’s request of October 24, 2024.

(a) Annulment Proceeding

Published Decisions

Decision on annulment

Available on the ICSID Website

Decision on annulment (June 11, 2020) English (Original); Spanish (Original)

(a) Original Proceeding

Date	Development
December 23, 2013	The Secretary-General registers a request for the institution of arbitration proceedings.
February 27, 2014	Following appointment by the Claimants, Stanimir A. Alexandrov (Bulgarian) accepts his appointment as arbitrator.
April 30, 2014	Following appointment by the Respondent, Campbell McLachlan (New Zealand) accepts his appointment as arbitrator.
July 8, 2014	The Tribunal is constituted in accordance with Article 37(2)(a) of the ICSID Convention. Its members are: John R. Crook (U.S.), President, appointed by the Chairman of the Administrative Council pursuant to the parties’ agreement; Stanimir Alexandrov (Bulgarian), appointed by the Claimants; and Campbell McLachlan (New Zealand), appointed by the Respondent.
July 8, 2014	Following appointment by the Chairman of the Administrative Council, John R. Crook (U.S.) accepts his appointment as presiding arbitrator.
September 5, 2014	The Tribunal holds a first session in Washington, D.C.
September 29, 2014	The Tribunal issues Procedural Order No. 1 concerning procedural matters.
October 30, 2014	The Claimants file a memorial on the merits.
November 14, 2014	A non-disputing party files an application pursuant to ICSID Arbitration Rule 37(2).
December 3, 2014	Each party files observations on the non-disputing party’s application.
December 17, 2014	The Tribunal issues a decision on the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
December 22, 2014	The Respondent files a request to address the objections to jurisdiction as a preliminary question.
January 23, 2015	The Claimants file observations on the Respondent’s request to address the objections to jurisdiction as a preliminary question.
February 9, 2015	The Tribunal issues a decision on the Respondent’s request to address the objections to jurisdiction as a preliminary question; as a result, the objections to jurisdiction are joined to the merits of the dispute.
April 6, 2015	The Tribunal communicates the reasoning for its February 9, 2015 decision on the Respondent’s request to address the objections to jurisdiction as a preliminary question.
April 13, 2015	The Respondent files a counter-memorial on the merits and memorial on jurisdiction.
May 26, 2015	The Tribunal issues Procedural Order No. 2 concerning procedural matters.
June 8, 2015	Following exchanges between the parties, the parties file a request for the Tribunal to decide on production of documents.
June 29, 2015	The Tribunal issues Procedural Order No. 3 concerning production of documents.
July 14, 2015	The Respondent files a request for the Tribunal to decide on production of documents.
July 22, 2015	The Claimants file observations on the Respondent’s request for the Tribunal to decide on production of documents.
August 10, 2015	The Tribunal issues Procedural Order No. 4 concerning production of documents and other procedural matters.
September 2, 2015	The Claimants file a request for the Tribunal to decide on production of documents.
September 7, 2015	The Respondent files observations on the Claimants’ request for the Tribunal to decide on production of documents.
September 9, 2015	The Tribunal issues Procedural Order No. 5 concerning production of documents and other procedural matters.
September 18, 2015	The Claimants file a reply on the merits and a counter-memorial on jurisdiction.
September 29, 2015	The Respondent files a request for the Tribunal to decide on production of documents.
October 14, 2015	The Claimants file observations on the Respondent’s request for the Tribunal to decide on production of documents. The Claimants file a request for the Tribunal to decide on production of documents.
October 26, 2015	The Tribunal issues Procedural Order No. 6 concerning production of documents and other procedural matters.
November 27, 2015	The Respondent files a rejoinder on the merits and reply on jurisdiction.
December 9, 2015	A non-disputing party files an application pursuant to ICSID Arbitration Rule 37(2).
December 16, 2015	Each party files observations on the non-disputing party’s application.
December 21, 2015	The Tribunal issues Procedural Order No. 7 concerning the non-disputing party’s application pursuant to ICSID Arbitration Rule 37(2).
December 23, 2015	The Claimants file a rejoinder on jurisdiction.
December 23, 2015	The Claimants file a request for the Tribunal to authorize a new written submission and to decide on the admissibility of new evidence.
December 30, 2015	The Respondent files observations on the Claimants’ request of December 23, 2015.
December 31, 2015	A non-disputing party files a request for reconsideration of Procedural Order No. 7.
January 8, 2016	The Tribunal issues Procedural Order No. 8 concerning the non-disputing party’s request of December 31, 2015.
January 11, 2016	The Tribunal issues Procedural Order No. 9 concerning the Claimants’ request of 23 December 2015.
January 12, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
January 13, 2016	The President holds a pre-hearing organizational meeting with the parties by telephone conference. The Tribunal decides on the admissibility of new evidence.
January 14, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
January 19, 2016	The Claimants file observations on the Respondent’s request of January 14, 2016.
January 20, 2016	The Tribunal issues Procedural Order No. 10 concerning the organization of the Hearing.
January 22, 2016	The Claimants file an additional written submission.
January 28, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
February 2, 2016	The Tribunal decides on the admissibility of new evidence.
February 3, 2016	The Tribunal issues Procedural Order No. 11 concerning the organization of the Hearing.
February 3, 2016	The Claimants file observations on the Respondent’s request of January 28, 2016.
February 8, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence. The Claimants file observations on the Respondent’s request of February 8, 2016. The Tribunal decides on the admissibility of new evidence.
February 9, 2016	The Claimants file a request for the Tribunal to decide on the admissibility of new evidence.
February 11, 2016	The Tribunal decides on the admissibility of new evidence. The Claimants file a request for the Tribunal to decide on the admissibility of new translations.
February 12, 2016	The Respondent files observations on the Claimants' request of February 11, 2016. The Tribunal decides on the admissibility of new translations.
February 15, 2016 - February 20, 2016	The Tribunal holds a hearing on jurisdiction and the merits in Paris.
April 5, 2016	Each party files a statement of costs.
May 26, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
June 3, 2016	The Claimants file observations on the Respondent’s request of May 26, 2016.
June 9, 2016	The Tribunal decides on the admissibility of new evidence.
June 29, 2016	The Claimants file a request for the Tribunal to decide on the admissibility of new documents.
July 8, 2016	The Respondent files observations on the Claimants' request of June 29, 2016.
August 26, 2016	The Tribunal decides on the Claimants’ request of June 29, 2016.
September 16, 2016	Each party files an updated statement of costs.
November 18, 2016	The Respondent files a request for the Tribunal to decide on the admissibility of new documents.
November 25, 2016	The Claimants file observations on the Respondent’s request of November 18, 2016.
December 8, 2016	The Tribunal decides on the admissibility of new documents.
December 23, 2016	The Respondent files a further submission on its request for the admissibility of new documents of November 18, 2016.
January 6, 2017	The Claimants file observations on the Respondent’s submission of December 23, 2016.
February 23, 2017	The Tribunal decides on the admissibility of new documents.
April 13, 2017	The Tribunal declares the proceeding closed in accordance with ICSID Arbitration Rule 38(1).
May 4, 2017	The Tribunal renders its award.

(b) Annulment Proceeding

Date	Development
July 28, 2017	The Acting 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.
October 23, 2017	The ad hoc Committee is constituted in accordance with Article 52(3) of the ICSID Convention. Its members are: Ricardo Ramírez Hernández (Mexican), President; Teresa Cheng (Chinese); and Dominique Hascher (French); all members appointed by the Chairman of the Administrative Council.
November 22, 2017	The Kingdom of Spain files a request to continue the stay of enforcement of the award.
December 4, 2017	Eiser Infrastructure Limited and Energía Solar Luxembourg file observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
December 9, 2017	The ad hoc Committee holds a first session and hearing on stay of enforcement in Paris.
December 21, 2017	The Kingdom of Spain files a submission in support of the continuation of the stay of enforcement of the award.
December 21, 2017	Eiser Infrastructure Limited and Energía Solar Luxembourg file further observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
January 4, 2018	Each party files further observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
January 19, 2018	The ad hoc Committee issues Procedural Order No. 1 concerning procedural matters.
March 8, 2018	The Kingdom of Spain files a memorial on annulment.
March 23, 2018	The ad hoc Committee issues a decision on the termination of the stay of enforcement of the award.
April 4, 2018	Following the resignation of ad hoc Committee member Teresa Cheng, the Secretary-General notifies the parties of the vacancy on the ad hoc Committee and the proceeding is suspended pursuant to ICSID Arbitration Rules 53 and 10(2).
April 20, 2018	Following the resignation of Teresa Cheng, Makhdoom Ali Khan (Pakistani) accepts his appointment as member of the committee, appointed by the Chairman of the Administrative Council in accordance with ICSID Arbitration Rules 11(1) and 53.
April 20, 2018	The ad hoc Committee is reconstituted. Its members are Ricardo Ramírez Hernández (Mexican), President, Dominique Hascher (French), and Makhdoom Ali Khan (Pakistani), all appointed by the Chairman of the Administrative Council. The proceeding is resumed pursuant to ICSID Arbitration Rules 12 and 53.
May 31, 2018	The Kingdom of Spain files a request for reconsideration of the ad hoc Committee's decision on the stay of enforcement of the award.
June 11, 2018	Eiser Infrastructure Limited and Energía Solar Luxembourg file a counter-memorial on annulment.
June 22, 2018	Eiser Infrastructure Limited and Energía Solar Luxembourg file a response to the Kingdom of Spain’s request for reconsideration of the ad hoc Committee's decision on the stay of enforcement of the award.
July 19, 2018	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
August 7, 2018	Each party files observations on the non-disputing party’s application.
August 10, 2018	The ad hoc Committee issues Procedural Order No. 2 concerning the Kingdom of Spain’s request for reconsideration of the ad hoc Committee's decision on the stay of enforcement of the award.
August 24, 2018	The Kingdom of Spain files a reply on annulment.
October 11, 2018	The ad hoc Committee issues Procedural Order No. 3 concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
November 6, 2018	Eiser Infrastructure Limited and Energía Solar Luxembourg file a rejoinder on annulment.
November 12, 2018	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
December 12, 2018	Each party files observations on the non-disputing party’s written submission pursuant to ICSID Arbitration Rule 37(2).
March 1, 2019	The ad hoc Committee issues Procedural Order No. 4 concerning the organization of the hearing on annulment.
March 14, 2019 - March 15, 2019	The ad hoc Committee holds a hearing on annulment in Paris.
July 5, 2019	Each party files a submission on costs.
April 14, 2020	The ad hoc Committee declares the proceeding closed in accordance with ICSID Arbitration Rules 38(1) and 53.
June 11, 2020	The ad hoc Committee issues its decision on annulment.

(c) Supplementary Decision Proceeding

Date	Development
July 31, 2020	The Secretary-General registers a request for supplementary decision of the decision on annulment filed by Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l.
August 14, 2020	The Kingdom of Spain files observations on Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l.’s request for a supplementary decision.
August 21, 2020	Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. file a reply to the Kingdom of Spain’s observations on the request for a supplementary decision.
August 28, 2020	The Kingdom of Spain files a rejoinder to Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l.’s reply on the request for a supplementary decision.
August 31, 2020	Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. file a proposal for disqualification of ad hoc Committee member Ricardo Ramírez Hernández. The proceeding is suspended in accordance with ICSID Arbitration Rules 53 and 9(6).
September 11, 2020	The Kingdom of Spain files observations on the proposal for disqualification.
September 21, 2020	The member of the ad hoc Committee furnishes explanations regarding the proposal for disqualification in accordance with ICSID Arbitration Rules 53 and 9(3).
September 30, 2020	Each party files further observations on the proposal for disqualification.
October 6, 2020	The Kingdom of Spain files a response to Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l.’s further observations of September 30, 2020.
October 13, 2020	The member of the ad hoc Committee furnishes further explanations regarding the proposal for disqualification in accordance with ICSID Arbitration Rules 53 and 9(3).
October 20, 2020	Each party files further observations on the proposal for disqualification.
April 27, 2021	The proposal for disqualification of ad hoc Committee member Ricardo Ramírez Hernández is declined by the other two members of the ad hoc Committee. The proceeding is resumed pursuant to ICSID Arbitration Rules 53 and 9(6).
July 28, 2021	The ad hoc Committee issues its decision on the request for supplementary decision of the decision on annulment.

(d) Resubmission Proceeding

Date	Development
July 29, 2021	The Secretary-General registers a request for resubmission of the dispute to a new tribunal.
October 22, 2021	Following appointment by the Claimants, O. Thomas Johnson, Jr. (U.S.) accepts his appointment as arbitrator.
October 31, 2021	Following appointment by the Respondent, Marcelo Kohen (Argentine) accepts his appointment as arbitrator.
May 16, 2022	Following appointment by the Chairman of the Administrative Council pursuant to the parties’ agreement, Andrea Carlevaris (Italian) accepts his appointment as presiding arbitrator.
May 16, 2022	The Tribunal is constituted in accordance with Article 37(2)(a) of the ICSID Convention. Its members are: Andrea Carlevaris (Italian), President, appointed by the Chairman of the Administrative Council pursuant to the parties’ agreement; O. Thomas Johnson, Jr. (U.S.), appointed by the Claimants; and Marcelo Kohen (Argentine), appointed by the Respondent.
July 6, 2022	The Tribunal holds a first session by video conference.
July 25, 2022	The Tribunal issues Procedural Order No. 1 concerning procedural matters.
October 7, 2022	The Claimants file a memorial on the merits.
February 10, 2023	The Respondent files a counter-memorial on the merits and memorial on jurisdiction.
March 31, 2023	Following exchanges between the parties, each party files a request for the Tribunal to decide on production of documents.
April 14, 2023	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
April 14, 2023	The Tribunal issues Procedural Order No. 2 concerning production of documents.
April 21, 2023	The Claimants file observations on the Respondent’s request of April 14, 2023.
April 28, 2023	The Tribunal issues Procedural Order No. 3 concerning the admissibility of new evidence and procedural matters.
June 17, 2023	The Claimants file a reply on the merits and counter-memorial on jurisdiction.
July 16, 2023	The Respondent files a rejoinder on the merits and reply on jurisdiction.
October 2, 2023	The Claimants file a rejoinder on jurisdiction.
October 10, 2023	The Tribunal holds a pre-hearing organizational meeting with the parties by video conference.
November 6, 2023	The Tribunal issues Procedural Order No. 4 concerning the organization of the hearing.
November 9, 2023	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
November 13, 2023	Each party files observations on the non-disputing party’s application.
November 17, 2023	The Tribunal issues Procedural Order No. 5 concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
November 20, 2023 - November 24, 2023	The Tribunal holds a hearing on jurisdiction and the merits in person in The Hague and by video conference.
November 30, 2023	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
December 15, 2023	Each party files observations on the non-disputing party’s written submission pursuant to ICSID Arbitration Rule 37(2).
February 15, 2024	Each party files a post-hearing brief.
February 23, 2024	The Tribunal issues Procedural Order No. 6 concerning the organization of the hearing.
March 15, 2024	The Tribunal holds the continuation of the hearing on jurisdiction and the merits in person in Paris and by video conference.
March 18, 2024	The Tribunal poses questions to the parties.
March 25, 2024	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
March 26, 2024	The Claimants file observations on the Respondent’s request of March 25, 2024.
March 27, 2024	The Tribunal decides on the Respondent’s request of March 25, 2024.
April 18, 2024	Each party files answers to the questions posed by the Tribunal and a supplemental expert report.
May 30, 2024	Each party files a reply and a rebuttal supplemental expert report.
July 15, 2024	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
July 17, 2024	The Claimants file observations on the Respondent’s request of July 15, 2024.
July 18, 2024	The Tribunal decides on the Respondent’s request of July 15, 2024.
September 13, 2024	Each party files a submission on costs.
September 27, 2024	Each party files observations on the other party’s submission on costs.
October 24, 2024	The Respondent files a request for the Tribunal to decide on the admissibility of new evidence.
October 28, 2024	The Tribunal decides on the Respondent’s request of October 24, 2024.
October 28, 2024	The Claimants file observations on the Respondent’s request of October 24, 2024.