London, (EFE) In 2013, it reduced incentives from 2007 for the development of renewable energies.
On behalf of Spain, the lawyer Tariq Baloch argued before Judge Peter Fraser of the Superior commercial chamber that the search warrant approved by the same court in June 2021 is invalid, given that the Spanish State “is immune” to a prosecution before the English Court.
The Antin group of investors, which in 2011 financed the Andasol solar plant in Granada, maintains that Spain waived its state immunity by signing the ICSID international arbitration agreement of 1966 and the Energy Charter Treaty (TCE ) of 1994 -which regulates the relations between the contracting parties in the energy sector-.
It was precisely the International Center for the Settlement of Investment Disputes (ICSID), an institution dependent on the World Bank, which in 2018 issued the award that requires Spain to pay 101 million euros (120 million with interest) to the funds Luxembourg Infrastructure Services Luxembourg and Dutch Energia Termosolar -formerly Antin Infrastructure Services Luxembourg and Antin Energia Termosolar- for the damages suffered as a result of the retroactive revocation in 2013 of these premiums for renewables.
Spain, which has unsuccessfully tried to annul that arbitral decision, alleges in the London trial that neither its adherence to ICSID nor to the TCE, from which it announced that it intends to withdraw in 2022, means that “it has waived its immunity” in the jurisdictions of the rest of the Member States, which is disputed by the plaintiffs.
Baloch added that, based on subsequent European Union (EU) jurisprudence, Article 26 of the TEC, which regulates the arbitration of disputes, “does not apply to claims against nationals of other EU Member States,” as are these litigants.
Antin rejects this interpretation. In his arguments, which he will detail in future sessions, he affirms that “Spain’s request seeks to breach its obligations derived from two international multilateral treaties.”
“If Spain is considered to be right, that would fundamentally undermine the entire system of investor rights and their protection, not only under the ECT but also under the Convention” of the ICSID, their documents presented to the court affirm.
The group of investors registered the award before the British Justice as a first step to try to force the Spanish Government to pay its debt, either voluntarily or through the confiscation of its assets in England.
In this sense, in a parallel process, Antin has obtained a provisional court order that, if it is eventually confirmed depending on how the case progresses, would force the maritime insurer London Steam-Ship Owners Mutual Insurance Association to pay him 120 million euros of the 855 million owed to Spain from a separate lawsuit over the Prestige spill in 2002.
In the event that its sovereign immunity argument fails, the Spanish Government also argues in the London trial that the claimants breached their procedural obligations by “not disclosing all the information” available when they requested the registration of the arbitral award.
After its reform of the system of premiums for renewable energy, Spain has faced 51 arbitrations in several countries for this cause, with claims for some 10,000 million euros and 28 awards issued, of which to date none have been executed.
According to Spanish government sources, Spain is reluctant to make the payments because it believes that “they may be contrary to EU law and constitute illegal State Aid.”
The result of the trial in London, which will continue until Monday – although an immediate ruling is not expected – may set a precedent for other plaintiffs.