Costs are split

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Spain’s second request for reconsideration added to costs and duration of the proceedings, with consequences for decision on costs

Short-term, risk-free rate with an added margin should compensate loss of opportunity to use money

Even small discrepancy between returns and reasonable rate should be compensated

Focus on actual economic impact of Spain’s breaches means that actual maintenance costs should be used – even if those were above average

Tax shield should be taken into account when discounting cash flows

While distinct, the compensations owed for Spain’s treaty breaches overlap, and reducing one may increase the other

Background: Findings on liability prompt dedicated

Full reparation standard requires that costs follow the event, but relative success should be considered

Post-award interest should be higher than pre-award interest, to incentivise compliance

New regulatory regime entails higher regulatory risk for purposes of discount rate

Spain’s methodology reintroduced effect of unlawful clawback

Faced with estimates of investment and operating costs, the arbitrators adopt a mixed methodology relying on investment costs for standard facilities

In determining difference with 7% rate of return post-tax, tribunal needs to take into account role of tax deductions arising from shareholder loan – even if Spanish regulator had not done so

Joint expert reports disagree on several points

Background: After finding ECT breaches, tribunal provides directions on quantum

Tribunal does not address recent dissenting opinion in Portigon AG. v. Spain

CJEU jurisprudence does not constitute an impediment to the tribunal’s jurisdiction

Tribunal highlights differences with Novenergia and PL Holdings judgments, based on the absence of a lex arbitri in ICSID proceedings

Case law filed by Spain is examined even in the absence of a request for leave to submit additional evidence

Tribunal reaffirms that request for reconsideration of previous ruling is admissible only in exceptional circumstances

Background: Spain files second request for reconsideration, this time relying on recent set-aside decisions

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