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Procedural Background and Issues
This document is the Arbitral Tribunal's decision on the Kingdom of Spain's post-award application, filed pursuant to Article 49(2) of the ICSID Convention, for the rectification of the Award rendered on 21 January 2020. Spain also requested a stay of enforcement of the Award pending the outcome of its rectification request.
Spain's application for rectification was based on two principal grounds. First, it alleged a clerical error in the damages calculation, contending the Tribunal mistakenly awarded EUR 77 million based on future damages only, whereas the correct figure, including past damages, should have been EUR 97.7 million. Second, Spain argued that after declining jurisdiction over the Claimants' claim concerning a 7% tax on electricity production (the TVPEE), the Tribunal failed to neutralize the impact of this tax in its damages model, which constituted a rectifiable error.
The Tribunal's Analysis and Decision
The Tribunal, by majority, denied both the request for rectification and the application for a stay of enforcement. The Tribunal began by affirming the limited scope of Article 49(2), which permits the correction of "clerical, arithmetical or similar error" but does not serve as a mechanism for substantive review or appeal of the merits of an award.
On the first alleged error concerning past damages, the Tribunal found that its decision to reject claims for losses prior to the date the breach crystallized (20 June 2014) and to award EUR 77 million was a deliberate and reasoned decision based on its findings on the merits. It was therefore not a clerical error subject to rectification. On the second alleged error regarding the TVPEE, the Tribunal determined that Spain's request constituted a novel argument not raised during the main proceedings. Addressing it would require a complex re-evaluation of evidence and expert reports, far exceeding the scope of a simple correction and amounting to an impermissible review of the Award's substance.
Regarding the stay of enforcement, the Tribunal held that it lacked jurisdiction to grant such relief in the context of a rectification proceeding. Relying on the persuasive authority of the decision in Masdar v. Spain, the Tribunal concluded that the ICSID Convention and Arbitration Rules provide for a stay of enforcement only in connection with applications for interpretation, revision, or annulment (Articles 50-52), not rectification under Article 49.
Disposition and Costs
The Tribunal dismissed Spain's Request for Rectification and its application for a stay of enforcement in their entirety. Applying the principle that costs follow the event, the Tribunal ordered Spain to bear the Claimants' legal costs incurred in the rectification proceeding, amounting to EUR 63,293.39, as well as the Claimants' share of the proceeding's costs, amounting to USD 36,772.13.
