Procedural Posture and Relief Sought

This document is the Memorial on Annulment filed by the Kingdom of Spain before an ICSID ad hoc Committee, seeking the complete annulment of the Award rendered on 25 January 2021 in ICSID Case No. ARB/15/16. Spain bases its application on three distinct grounds under Article 52(1) of the ICSID Convention: manifest excess of powers, serious breach of a fundamental procedural rule, and failure to state reasons.

Grounds for Annulment

Spain's application for annulment is structured around the following principal arguments:

1. Manifest Excess of Powers (Article 52(1)(b)): Spain contends that the Arbitral Tribunal manifestly exceeded its powers by asserting jurisdiction over an intra-EU dispute. The core of this argument is that EU law, which has primacy within the EU legal order, precludes investment arbitration between an investor from one EU Member State (Germany) and another EU Member State (Spain). Spain argues that the Tribunal's dismissal of its intra-EU jurisdictional objection, particularly in light of the European Court of Justice's judgments in Achmea and Komstroy, was a fundamental error that vitiates the Award. The Tribunal acted beyond the consent of the parties, as no valid offer to arbitrate exists for such disputes under the Energy Charter Treaty (ECT) within the EU context.

2. Failure to State Reasons (Article 52(1)(e)): As a secondary and related ground, Spain argues that the Award should be annulled for the Tribunal's failure to provide a coherent, sufficient, and legally sound basis for its decision to dismiss the intra-EU objection. Spain characterizes the Tribunal's reasoning as insufficient and contradictory, thereby failing to meet the standard required by the ICSID Convention for a reasoned award.

3. Serious Breach of a Fundamental Procedural Rule (Article 52(1)(d)): Spain asserts that the Tribunal committed a serious breach of its fundamental right to be heard. This breach allegedly occurred in two instances: first, when the Tribunal refused to admit into the record the "Declaration of the Representatives of the Governments of the Member States" of 15 January 2019, a key document which Spain argues was directly relevant to the jurisdictional objection. Second, the Tribunal improperly rejected the European Commission's application to intervene as an amicus curiae, thereby denying itself access to the views of the "Guardian of the EU Treaties" on the dispositive jurisdictional issue.

Conclusion

Based on these grounds, the Kingdom of Spain respectfully requests the ad hoc Committee to issue a decision completely annulling the Award in its entirety.