Foresight Luxembourg Solar 1 S.A.R.L., Foresight Luxembourg Solar 2 S.A.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. v. Kingdom of Spain

At a glance

Parties

Foresight Luxembourg Solar 1 S.À.R.L. and Foresight Luxembourg Solar 2 S.À.R.L. (Luxembourg), Greentech Energy Systems A/S, now Athena Investments A/S (Denmark), GWM Renewable Energy I S.p.A. and GWM Renewable Energy II S.p.A. (Italy) v. Kingdom of Spain

Case no.

No. 19 Civ. 3171 (ER), S.D.N.Y.

Court

U.S. District Court, Southern District of New York (Judge Edgardo Ramos)

Underlying award(s)

SCC award of 14 November 2018 under the Energy Charter Treaty, seated in Stockholm

Treaty

Energy Charter Treaty; New York Convention; Federal Arbitration Act, Chapter 2

Sector

Renewable energy (solar)

Outcome

Spain's motion to transfer was granted. The case was transferred to the U.S. District Court for the District of Columbia, and Spain's request for a stay was referred to that court.

Amount

Underlying award: €39 million, plus costs and interest

The dispute

The petitioners are EU investors from Luxembourg, Denmark and Italy. Between May 2009 and May 2010 they acquired three Spanish companies that operated solar power plants under Spain's 2007 feed-in tariff regime. Between 2010 and 2014 Spain adopted reforms, including a 7% tax on electricity generation revenue and caps on the operating hours eligible for the tariff. The petitioners sold their investments at a loss in 2015 and 2016. An SCC tribunal found that Spain had breached the Energy Charter Treaty and awarded €39 million. The petitioners then sought confirmation of the award in New York under the New York Convention. Spain argued, relying on the CJEU's Achmea judgment, that there was no valid arbitration agreement in an intra-EU dispute, and that service had been defective. It also asked the court to transfer the case to the District of Columbia or to stay it pending its set-aside action in the Svea Court of Appeal.

Key holdings

1. Because the case was removed from state court, venue is governed by the removal statute (§ 1441), not the general venue statute (§ 1391). The Southern District of New York was therefore a proper venue. A discretionary transfer under § 1404(a) nevertheless remains available. p. 8
2. The action could have been brought in the District of Columbia under § 1391(f)(4), which is the dedicated venue for actions against foreign states. The first step of the transfer test was therefore met. pp. 8–9
3. Judicial economy favours transfer. Parallel cases against Spain are pending in the District of Columbia, including Novenergia II, a New York Convention case that was stayed on 27 January 2020 pending set-aside proceedings in Sweden. p. 10
4. The petitioners' choice of forum carries little weight. They are not residents of New York, the dispute has no connection to the forum, and the New York Convention is the only link to the court. The balance of convenience and the interests of justice favour transfer. pp. 10–11
5. The court granted the motion to transfer and referred the request for a stay to the transferee court. It did not decide Spain's objections to subject-matter or personal jurisdiction. p. 11

Procedural history

1. 2 November 2015The petitioners began SCC arbitration against Spain under Article 26 of the Energy Charter Treaty.
2. 14 November 2018The tribunal issued its award: Spain had breached the ECT and was ordered to pay €39 million, plus costs and interest.
3. 14 December 2018The petitioners filed a petition to confirm the award in the Supreme Court of New York County.
4. 14 February 2019Spain applied to the Svea Court of Appeal to set aside the award.
5. 21 February 2019The Svea Court of Appeal issued a provisional order suspending the award until further notice.
6. 10 April 2019Spain removed the action to the U.S. District Court for the Southern District of New York.
7. 3 May 2019The European Union filed an amicus curiae submission supporting Spain.
8. 30 March 2020Opinion and Order: the case is transferred to the District of Columbia, and the stay request is referred to that court.

Tribunal, counsel and experts

Decided by

• Edgardo Ramos Judge, U.S. District Court, Southern District of New York

Experts

Stefan Lindskog (respondent)

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Keywords

• Energy Charter Treaty
• New York Convention
• recognition and enforcement
• transfer of venue
• 28 U.S.C. § 1404(a)
• FSIA
• District of Columbia
• intra-EU objection
• Achmea
• Svea Court of Appeal
• set-aside
• stay of enforcement
• renewable energy
• solar
• feed-in tariff
• Novenergia II
• SCC

Summary generated with AI from the published documents — refer to the award for the authoritative text.