Granting party additional time at hearing to address evidence submitted by counter-party prevents infringement of the principle of equality of arms

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Party must be able to reply to evidence submitted by counter-party for principle of equality of arms not to be infringed

Objections regarding the relevance and materiality of an expert report relate to the merits of the evidence, not its admissibility

UNCITRAL tribunal has power to exclude evidence from the arbitral record

Article 46 VCLT, Article 16 ECT, and considerations of non-retroactivity do not change the dissenter’s conclusion that the tribunal lacks jurisdiction over intra-EU disputes

Withdrawal of consent to intra-EU ECT arbitration is in conformity with Article 25(1) ICSID Convention and Article 41 VCLT

Mr. Sacerdoti opines that the withdrawal of EU member states’ consent to intra-EU ECT arbitration dates from the 2009 Lisbon Treaty

In contrast, CJEU’s finding that Article 26 of the ECT does not contain consent to intra-EU arbitration is not binding on arbitration tribunals, the dissenter emphasizes

Dissenter opines that Komstroy Judgment “completely changed the picture” on the intra-EU objection, meaning that member states lacked the competence to consent to intra-EU ECT arbitration

Mr. Sacerdoti finds that some previous tribunals have shown disregard for the CJEU’s decisions, but agrees that analysis must be based on international law

Spain’s request to reconsidering the investment objection is rejected as an attempt to reargue a case previously made

Tribunal majority opines that, in relying on Article 41 of the VCLT, the dissenter is going “beyond the scope of the debate between the parties”

Majority finds Green Power Award distinguishable on account of its EU seat, while also criticizing tribunal’s approach

Majority adds that CJEU’s Micula Judgment and set-aside decisions from the Paris Court of Appeal do not decisively affect its Decision on Jurisdiction

Tribunal majority finds that new documents are not particular and exceptional; thus they do not warrant reconsideration

Tribunal majority decides that Komstroy Decision does not decisively affect its Decision on Jurisdiction

Tribunal recalls findings on intra-EU objection from Decision on Jurisdiction

Alleged error in the interlocutory decision is insufficient to grant a reconsideration request

Although not a fact “in the strict sense”, the Komstroy Decision is sufficiently particular and exceptional to render the reconsideration request admissible

Criteria for revision of awards can provide “guidance” for reconsideration requests

Tribunal has the power to reconsider interlocutory decisions, which are not res judicata in the ICSID framework

Tribunal holds dedicated hearing and allows parties to introduce new documents (including the Green Power award) in post-hearing submissions

Relying on the CJEU’s Komstroy Decision, Spain asks for reconsideration

Majority does not think that applicants would provide assistance on legal or factual issues at stake in the arbitration

Tribunal majority finds that applicants have no significant interest in the arbitration, since the claimant is not seeking restitution and CIEL merely has a general interest in environmental matters

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