Procedural Background and Parties' Submissions

This document is the Tribunal's decision on the Respondent's (Spain) request to reconsider its Decision on Jurisdiction and Admissibility of 19 April 2021. The request was prompted by the supervening judgment of the Court of Justice of the European Union (CJEU) in Moldova v. Komstroy, which held that the arbitration clause in Article 26 of the Energy Charter Treaty (ECT) is incompatible with EU law and thus inapplicable to intra-EU disputes.

Spain argued that the Komstroy judgment constituted a decisive legal development that confirmed the autonomy of the EU legal order and definitively established the Tribunal's lack of jurisdiction. The Claimants countered that the request should be denied, asserting that the Tribunal's prior decision was binding within the proceedings, that the CJEU's ruling was not binding on an international tribunal constituted under the ICSID Convention, and that the Tribunal's jurisdiction is governed exclusively by public international law, under which Spain's consent to arbitration in the ECT remains valid and unconditional.

The Tribunal's Analysis and Findings

The Tribunal first addressed the admissibility of the reconsideration request. It acknowledged that while the ICSID Convention and Rules do not expressly provide for reconsideration of prior decisions, a tribunal possesses an inherent power to do so in exceptional circumstances, particularly to address a material legal development that could affect the final award and prevent procedural inefficiency. On this basis, the Tribunal found the request admissible for consideration.

On the substance, the Tribunal reaffirmed its original jurisdictional findings. It held that its competence is derived from the ECT and the ICSID Convention, which must be interpreted in accordance with the Vienna Convention on the Law of Treaties. The Tribunal reasoned that the express terms of the ECT do not differentiate between intra-EU and extra-EU disputes. It distinguished the Komstroy judgment, noting that its own legal framework is that of public international law, not the EU legal order, and that EU law does not possess primacy over international law in this context. The Tribunal emphasized that the ECT cannot have a different meaning for different configurations of Contracting Parties and that any modification to Spain's treaty obligations would require a formal amendment pursuant to the ECT itself, not a unilateral reinterpretation based on regional law. The Tribunal characterized the issue as a "clash of Grundnormen" but concluded that its mandate compelled it to apply the ECT as written.

Decision

The Tribunal decided that the CJEU's judgment in Komstroy did not warrant the reopening or alteration of its Decision on Jurisdiction and Admissibility of 19 April 2021. Accordingly, the Respondent's request for reconsideration was denied, and the Tribunal confirmed that its prior decision stands. The Tribunal indicated it would proceed to finalize and render its Award on the merits.