Procedural Posture

This document is the Counter-Memorial on the Merits and Memorial on Jurisdictional Objections submitted by the Respondent, the Kingdom of Spain, in an ICSID arbitration (Case No. ARB/15/16) initiated by BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH. The dispute arises under the Energy Charter Treaty (ECT) and concerns regulatory changes in Spain's renewable energy sector.

Jurisdictional Objections

Spain raises two principal objections to the Tribunal's jurisdiction. First, it argues a lack of jurisdiction ratione personae on the grounds that the dispute is an intra-EU matter, as both the Claimants (German entities) and the Respondent are members of the European Union. Spain contends that the dispute resolution mechanism under Article 26 of the ECT does not apply to intra-EU disputes, and that EU law, which provides its own system of investor protection, prevails. Second, Spain objects to the Tribunal's jurisdiction ratione materiae over claims related to the introduction of the Tax on the Value of the Production of Electrical Energy (TVPEE). It asserts that Article 21 of the ECT expressly carves out taxation measures from the scope of the substantive protections in Article 10(1) of the ECT, thereby precluding arbitration of such claims.

Arguments on the Merits

On the merits, Spain argues that it has not breached its obligations under the ECT, including the standards of Fair and Equitable Treatment (FET) under Article 10(1) and the prohibition on expropriation under Article 13. The Respondent posits that the challenged regulatory measures were a legitimate, reasonable, and proportionate exercise of its sovereign right to regulate its economy, particularly in the strategic energy sector.

Spain contextualizes the reforms within a severe economic crisis, a substantial and growing electricity tariff deficit, and a history of over-remuneration in the renewable energy sector. It contends that the foundational principle of Spain's regulatory framework has always been the provision of a "reasonable return," which does not equate to a guarantee of a stable or frozen remuneration regime. The measures were therefore predictable and necessary to ensure the financial sustainability of the Spanish Electricity System (SEE). Spain further argues that it has not breached the umbrella clause, as the legislative and regulatory acts cited by the Claimants do not constitute specific commitments undertaken with the investors. Finally, Spain requests the Tribunal to decline jurisdiction or, alternatively, to dismiss all claims on the merits and award costs in its favor.

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.