Clear text through which states gave consent to arbitrate in ECT cannot be varied by alleged contextual circumstances

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Limited scope of annulment proceedings means that Italy cannot introduce further intra-EU documents – including Green Power award – into the record

European Commission’s application to intervene as amicus curiae is premature, and there is no basis for it to serve as independent legal expert on EU law

Stay of enforcement is lifted, as committee is unconvinced that state’s solvency or exercise of its right to seek annulment qualify as circumstances that require continuation of the stay

Committee reckons that maintaining the award’s stay of enforcement should be exceptional

Background: Italy files for annulment of unfavourable ECT/renewable energy award

Spain is ordered to bear all costs, even though costs were split in underlying arbitration

Role of EU state aid rules on the merits was debated as a factual issue, and thus beyond the committee’s scope of review

Tribunals are entitled to be terse and build their reasoning the way they prefer, without failing to state reasons

No failure to apply EU state aid rules that both parties had only debated as a matter of fact – not law

Tribunal’s decision to uphold jurisdiction over intra-EU dispute was “reasoned and reasonable”

Public policy in favour of consistency cannot trump committee’s duty to consider only arguments before the tribunal

Committee declines to admit post-award decisions on intra-EU issues, finding them to be beyond the annulment’s scope

Manifest excess of powers is a high standard, given finality of awards

Disqualification request is rejected

European Commission cannot intervene, as committee finds that intervention would not add anything to Spain’s position

Spain’s request to reconsider stay decision relied on the wrong legal basis

Claimants provide written undertaking, but Spain asks for reconsideration of the stay decision after discovering that the claimants had sold an interest in the award to a third party

Lifting of stay is conditioned on provision of a binding and unconditional undertaking to repay monies collected in case of annulment

Balancing between compliance requirements under the ICSID Convention and EU law touches on the merits and is thus premature

Committee is not in a position to determine if the application is manifestly frivolous

Payment being conditioned on European Commission’s green light is evidence that a continued stay would likely harm the investors

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