This HTML version is machine-generated. Always consult the original document.

[Page 1]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOINT STATUS REPORT REGARDING
SET ASIDE PROCEEDINGS PENDING IN THE SVEA COURT OF APPEAL

Pursuant to the Court's Order dated September 9, 2020, Petitioners Novenergia II – Energy
& Environment (SCA) (“Novenergia"), Foresight Luxembourg Solar 1 S.À.R.L., Foresight
Luxembourg Solar 2 S.À.R.L., Greentech Energy Systems A/S (now known as Athena
Investments A/S), GWM Renewable Energy I S.P.A., and GWM Renewable Energy II S.P.A. (the
last five hereinafter referred to, collectively, as the “Foresight Petitioners”), and Respondent the
Kingdom of Spain ("Spain") submit this joint status report regarding the two separate proceedings

[Page 2]

brought by Spain in the Svea Court of Appeal in Sweden (“Svea Court”) to set aside each of the
two arbitral awards at issue in these actions.

Section I below describes a development in a separate set aside case pending before the
Svea Court, Italian Republic v. Athena Investments A/S (f/k/a Greentech Energy Systems A/S),
Novenergia II Energy & Environment (SCA) SICAR, and Novenergia II Italian Portfolio SA (Case
No. T 3229-19) (the “Italy proceedings”), that impacts both the Novenergia and Foresight set aside
proceedings. The status of those proceedings is described in Sections II and III, respectively.

I. The Svea Court's Decision to Refer Questions to the Court of Justice of the
European Union (“CJEU”) in Italy v. Athena Investments A/S

In 2019, Italy brought proceedings in the Svea Court to set aside an Energy Charter Treaty
("ECT") arbitral award obtained by three EU member State nationals, including Petitioners
Greentech Energy Systems A/S and Novenergia. On February 11, 2021, the Svea Court granted
Italy's request that it make a preliminary reference to the CJEU to resolve questions of EU law.

The Svea Court proposed referring the following questions of EU law to the CJEU:

1. Should the ECT be interpreted in such a way that Article 26 – by which a contracting party
   gives its unconditional consent to the referral of disputes between a contracting party and
   an investor from another contracting party regarding an investment that the latter has done
   in the former's area, to international arbitration – also encompass a dispute between an
   EU member state on the one hand and an investor from another EU member state on the
   other hand?

If Question 1 is to be answered in the affirmative:

2. Should Articles 19 and 4.3 TEU and Articles 267 and 344 TFEU be interpreted so that they
   preclude Article 26 ECT, or the application of this article, when an investor from an EU
   member state, in case of a dispute regarding investments in another EU member state, may
   initiate proceedings according to the article against the latter member state before an
   arbitral tribunal whose authority and decisions that member state is bound to accept?

If Question 2 is to be answered in the affirmative:

3. Should union law, in particular the principle of primacy of EU law and its efficient
   application, be interpreted so that it precludes the application of a provision in national
   law regarding preclusion, such as Article 34, second paragraph, of the Swedish Arbitration

[Page 3]

Act, if such application entails that a party in the challenge proceedings is prevented from
making an objection that the origin of the arbitration agreement, or the arbitration
agreement as such, is contrary to EU law?

On February 25, 2021, the parties in the Italy proceeding submitted comments on the Svea Court's
proposed preliminary reference. Based upon those comments, the Svea Court will decide what
questions to refer to the CJEU.

II. Proceedings in Spain's Action to Set Aside the Award in Novenergia

On February 5, 2021, Spain filed its final submission on the Svea Court's case summary,
completing merits briefing on Spain's set aside petition.

On February 10, 2021, Novenergia wrote the Svea Court, asking it to revise Spain's part
of the case summary in line with the Svea Court's directions, and to thereafter grant Novenergia
an opportunity to comment on Spain's final submission and, if necessary, the case summary.

On February 15, 2021, in light of the Svea Court's decision to make a preliminary reference
to the CJEU in the Italy proceedings, the Svea Court indicated that it expects that it will not be
able to hold the merits hearing scheduled for May 2021. It also requested Spain to provide
comments on the effect of the Italy decision on the Novenergia set aside proceedings by March 1,
2020. Both parties were also invited to submit comments on the future handling of the Novenergia
set aside proceedings.

On February 26, 2021, in response to the Svea Court's invitation, Spain argued that the
Svea Court should reconsider its decision to deny Spain's request for a referral to the CJEU, and
that it should refer the questions Spain previously identified to the CJEU. It also argued that the
Novenergia proceedings should be stayed pending the decision of the CJEU in the Italy
proceedings.

[Page 4]

On March 1, 2020, Novenergia informed the Svea Court that it assumed that the Svea Court
of Appeal would stay the Novenergia set aside proceedings, in light of the preliminary reference
in the Italy proceedings and its indication that the scheduled hearing would not be held.

III. Proceedings in Spain's Action to Set Aside the Award in Foresight

On February 15, 2021, in light of the Svea Court's decision to make a preliminary reference
to the CJEU in the Italy proceedings, the Svea Court canceled all scheduled deadlines in the
Foresight proceedings until further notice, including the February 26, 2021 deadline for the
submission of comments on the European Commission's amicus curiae brief. It also indicated that
it expects that it will not be able to hold the merits hearing scheduled for October 2021 and
requested the parties to provide comments on the effect of the Italy decision on the Foresight set
aside proceedings.

On March 1, 2021, in response to the Svea Court's invitation, the parties submitted their
comments on the effect of the Italy decision on the Foresight proceedings. Spain argued that the
Svea Court should reconsider its decision to deny Spain's request for a referral to the CJEU, and
that it should refer the questions Spain previously identified to the CJEU. It further argued that, if
the Svea Court were to choose not to refer questions to the CJEU in the Foresight proceedings, the
Foresight proceedings should be stayed pending the decision of the CJEU in the Italy proceedings.

The Foresight Petitioners informed the Svea Court that it assumed that the Svea Court of Appeal
would stay the Foresight set aside proceedings, in light of the preliminary reference in the Italy
proceedings and its indication that the scheduled hearing would not be held.

[Page 5]

[Page 6]

FORESIGHT LUXEMBOURG SOLAR 1
S.À.R.L., FORESIGHT LUXEMBOURG
SOLAR 2 S.À.R.L., GREENTECH
ENERGY SYSTEMS A/S (NOW KNOWN
AS ATHENA INVESTMENTS A/S), GWM
RENEWABLE ENERGY I S.P.A., AND
GWM RENEWABLE ENERGY II

By their attorneys,

KING & SPALDING LLP
/s/ James E. Berger
James E. Berger (D.C. Bar 481408)
Charlene C. Sun (D.C. Bar 1027854)
1185 Avenue of the Americas
New York, NY 10036-4003
Tel: (212) 556-2100
Fax: (212) 556-2222
[email protected]
[email protected]