Case Details

OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain (ICSID Case No. ARB/15/36)

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):

Schwab Holding AG (Swiss), OperaFund Eco-Invest SICAV PLC (Maltese)
Respondent(s):

Kingdom of Spain (Spanish)
Date Registered:

August 11, 2015
Date of Constitution of Tribunal:

March 28, 2016

Composition of Tribunal

President:

Karl-Heinz BÖCKSTIEGEL (German) - Appointed by the Parties
Arbitrators:

August REINISCH (Austrian) - Appointed by the Claimant(s)
Philippe SANDS (British, French, Mauritian) - Appointed by the Respondent(s)

Party Representatives

Claimant(s):

Cuatrecasas, Gonçalves Pereira, 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:

September 6, 2019 - The Tribunal renders its award. Attached to the award is a dissenting opinion by arbitrator Philippe Sands.

(b) Rectification Proceeding

Applicant(s)/Requesting Party(ies):

Claimant(s)
Date Registered:

October 10, 2019 (Claimant(s))

Party Representatives

Claimant(s):

Cuatrecasas, Gonçalves Pereira, 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:

October 28, 2019 - The Tribunal issues a decision on the rectification of the award.

(c) Annulment Proceeding

Applicant(s)/Requesting Party(ies):

Respondent(s)
Date Registered:

March 3, 2020 (Respondent(s))
Date of Constitution of ad hoc Committee:

June 17, 2020

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

President:

Timothy J. FEIGHERY (Irish, U.S.)
Members:

Milton Estuardo ARGUETA PINTO (Guatemalan)
Fausto DE QUADROS (Portuguese)

Party Representatives

Claimant(s):

Cuatrecasas, Gonçalves Pereira, 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 2, 2023 - The ad hoc Committee issues its decision on annulment.

(a) Original Proceeding

Published Decisions

Award of the Tribunal

Dissenting Opinion on Liability and Quantum

Available on the ICSID Website

Award of the Tribunal (September 6, 2019) English (Original); Spanish (Original)

Dissenting Opinion on Liability and Quantum (August 13, 2019) English (Original); Spanish (Original)

(a) Original Proceeding

Date	Development
August 11, 2015	The Secretary-General registers a request for the institution of arbitration proceedings.
November 2, 2015	Following appointment by the Claimants, August Reinisch (Austrian) accepts his appointment as arbitrator.
November 25, 2015	Following appointment by the Respondent, Philippe Sands (British/French) accepts his appointment as arbitrator.
March 28, 2016	Following appointment by agreement of the parties, Karl-Heinz Böckstiegel (German), accepts his appointment as presiding arbitrator.
March 28, 2016	The Tribunal is constituted in accordance with Article 37(2)(b) of the ICSID Convention. Its members are Karl-Heinz Böckstiegel (German), President, appointed by agreement of the Parties; August Reinisch (Austrian), appointed by the Claimants; and Philippe Sands (British/French), appointed by the Respondent.
May 24, 2016	The Tribunal holds a first session by telephone conference.
June 20, 2016	The Tribunal issues Procedural Order No. 1 concerning procedural matters.
October 27, 2016	The Claimants file a memorial on the merits.
January 16, 2017	A non-disputing party files an application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
March 10, 2017	The Respondent files a counter-memorial on the merits and memorial on jurisdiction.
May 18, 2017	Following exchanges between the parties, each party files a request for the Tribunal to decide on production of documents.
May 22, 2017	Each party files observations on the non-disputing party’s application.
June 13, 2017	Each party files a response to the other party’s observations of May 18, 2017. The Tribunal issues a procedural order concerning the non-disputing party’s application to file a written submission pursuant to ICSID Arbitration Rule 37(2).
July 26, 2017	The Tribunal issues Procedural Order No. 3 concerning production of documents.
September 29, 2017	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
November 30, 2017	The Claimants file a reply on the merits and a counter-memorial on jurisdictional objections.
March 9, 2018	The Respondent files a rejoinder on the merits and a reply on jurisdiction.
May 24, 2018	The Tribunal issues Procedural Order No. 4 concerning the organization of the hearing.
May 29, 2018	The Tribunal issues Procedural Order No. 5 concerning the organization of the hearing.
June 18, 2018	The Tribunal issues Procedural Order No. 6 concerning procedural matters.
August 27, 2018	Each party files a post-hearing brief.
October 4, 2018	Each party files a reply post-hearing brief.
June 11, 2018 - June 15, 2018	The Tribunal holds a Hearing on Jurisdiction and the Merits in Paris.
October 18, 2018	Each party files a statement of costs.
October 25, 2018	Each party files a reply submission on costs.
June 5, 2019	The Tribunal declares the proceeding closed in accordance with ICSID Arbitration Rule 38(1).
September 6, 2019	The Tribunal renders its award. Attached to the award is a dissenting opinion by arbitrator Philippe Sands.

(b) Rectification Proceeding

Date	Development
October 10, 2019	The Secretary-General registers a request for rectification of the award filed by OperaFund Eco-Invest SICAV PLC and Schwab Holding AG.
October 28, 2019	The Tribunal issues a decision on the rectification of the award.

(c) Annulment Proceeding

Date	Development
March 3, 2020	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.
June 17, 2020	The ad hoc Committee is constituted in accordance with Article 52(3) of the ICSID Convention. Its members are: Timothy J. Feighery (Irish, U.S.), President; Milton Estuardo Argueta Pinto (Guatemalan); and Fausto de Quadros (Portuguese); all members appointed by the Chairman of the Administrative Council.
July 16, 2020	The Kingdom of Spain files a request to continue the stay of enforcement of the award.
July 23, 2020	The ad hoc Committee holds a first session by videoconference.
July 27, 2020	The ad hoc Committee issues Procedural Order No. 1 concerning procedural matters.
July 31, 2020	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file observations on the Kingdom of Spain’s request to continue the stay of enforcement of the award.
September 15, 2020	The Kingdom of Spain files a reply on the request to continue the stay of enforcement of the award.
September 30, 2020	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file a rejoinder on the request to continue the stay of enforcement of the award.
October 23, 2020	The Kingdom of Spain files a memorial on annulment.
November 16, 2020	The ad hoc Committee issues a decision on the request for continuation of the stay of enforcement of the award.
December 3, 2020	A non-disputing party files an application pursuant to ICSID Arbitration Rule 37(2).
January 8, 2021	Each party files observations on the non-disputing party’s application.
January 22, 2021	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file a counter-memorial on annulment.
January 29, 2021	Each party files reply observations on the non-disputing party’s application.
February 27, 2021	The Committee issues Procedural Order No. 2 concerning the non-disputing party’s application pursuant to ICSID Arbitration Rule 37(2).
March 12, 2021	The non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2).
March 29, 2021	The Kingdom of Spain files a reply on annulment.
June 1, 2021	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file a rejoinder on annulment.
June 23, 2021	The ad hoc Committee issues Procedural Order No. 3 concerning procedural matters.
June 29, 2021	The Committee holds a pre-hearing organizational meeting with the parties by videoconference.
June 30, 2021	The ad hoc Committee issues Procedural Order No. 4 concerning the organization of the hearing.
July 19, 2021	The ad hoc Committee holds a hearing on annulment by video conference.
August 3, 2021	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file a request for the ad hoc Committee to decide on the admissibility of a new legal authority.
August 11, 2021	The Kingdom of Spain files observations on OperaFund Eco-Invest SICAV PLC and Schwab Holding AG’s request of August 3, 2021.
August 18, 2021	The ad hoc Committee decides on OperaFund Eco-Invest SICAV PLC and Schwab Holding AG’s request of August 3, 2021.
September 10, 2021	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of a new legal authority.
September 17, 2021	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file observations on the Kingdom of Spain’s request of September 10, 2021.
October 20, 2021	The ad hoc Committee decides on the Kingdom of Spain’s request of September 10, 2021.
May 10, 2022	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new documents.
May 23, 2022	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file observations on the Kingdom of Spain’s request of May 10, 2022.
May 31, 2022	The ad hoc Committee decides on the Kingdom of Spain’s request of May 10, 2022.
June 24, 2022	The Kingdom of Spain files a request for the ad hoc Committee to decide on the admissibility of new documents.
July 6, 2022	OperaFund Eco-Invest SICAV PLC and Schwab Holding AG file observations on the Kingdom of Spain’s request of June 24, 2022.
July 18, 2022	The ad hoc Committee decides on the Kingdom of Spain’s request of June 24, 2022.
November 7, 2022	Each party files a statement of costs.
February 14, 2023	The ad hoc Committee declares the proceeding closed in accordance with ICSID Arbitration Rules 53 and 38(1).
March 2, 2023	The ad hoc Committee issues its decision on annulment.