Cavalum SGPS, S.A. v. Kingdom of Spain

Case summary

At a glance

Parties: Cavalum SGPS, S.A. (Portugal) v. Kingdom of Spain
Case no.: ICSID Case No. ARB/15/34
Forum and rules: ICSID Convention; ICSID Arbitration Rules
Treaty: Energy Charter Treaty
Tribunal: Lord Collins of Mapesbury (President), Sir Daniel Bethlehem, David R. Haigh
Sector: Renewable energy
Outcome: Procedural Order No. 6 (7 September 2022) rejected Spain's second request to reopen the proceeding and reconsider the Tribunal's decisions on jurisdiction. Costs were reserved to the final Award.

The dispute

Cavalum SGPS, S.A., an investor from Portugal, brought an Energy Charter Treaty claim against Spain at ICSID. The claim concerned an investment in Spain, and Spain treated the subsidies at issue as renewable energy support. Spain objected that the Tribunal had no jurisdiction over an intra-EU dispute. The Tribunal rejected that objection in its Decision on Jurisdiction, Liability and Directions on Quantum of 31 August 2020. On 10 January 2022 it refused to reconsider that decision in light of the CJEU's Komstroy judgment. The Tribunal closed the proceeding on 4 April 2022. Spain then asked it to reopen the proceeding, admit the SCC award in Green Power K/S and SCE Solar Don Benito v. Spain (16 June 2022) as a new legal authority, and reconsider both decisions. That award had upheld the intra-EU objection. The published document is the Tribunal's order on that request.

Key holdings

Once the proceeding is closed, ICSID Arbitration Rule 38(2) and paragraph 16.3 of Procedural Order No. 1 together set the test for reopening it or admitting more documents. One of three conditions must normally be met: new evidence of a decisive character, a vital need for clarification on specific points, or exceptional circumstances. ¶ 50
An arbitral decision in another case is a legal authority, not evidence. The Green Power Award is therefore not new evidence, and it would not be decisive even if it were. No clarification is needed, and no exceptional circumstances justify adding the award to the record. ¶¶ 51–54
The Tribunal applied the standard it set on 10 January 2022. Reconsideration requires a controlling authority showing that the earlier decision was wholly wrong, one that would plainly have led to a different conclusion had it existed at the time. A later case that merely casts doubt on the decision is not enough. ¶ 55
The Green Power Award does not meet that standard. That arbitration was seated in Stockholm under the SCC Rules, and its tribunal treated Swedish law, and with it EU law, as applicable to jurisdiction. That tribunal also expressly said that different considerations apply to ICSID arbitrations, which have no seat. Nothing in the award affects this Tribunal's Decision on Jurisdiction. ¶¶ 56–58
All three requests (to reopen, to admit new evidence, and to reconsider) were rejected, so the decisions of 31 August 2020 and 10 January 2022 stand. Costs of the application were reserved to the final Award. ¶¶ 59–60

Procedural history

5 May 2016Procedural Order No. 1 issued.
31 August 2020Decision on Jurisdiction, Liability and Directions on Quantum: the intra-EU objection is rejected and jurisdiction is upheld.
10 January 2022Decision rejecting Spain's first Request for Reconsideration, which was based on the CJEU's Komstroy judgment.
4 April 2022The Tribunal declares the proceeding closed.
28 June 2022Spain asks the Tribunal to reopen the proceeding and reconsider its decisions, relying on the Green Power Award. The Claimant files its observations on 8 July 2022.
7 September 2022Procedural Order No. 6 rejects Spain's request.