SPAIN Law and Practice Contributed by: Pablo Silván and Fernando Manzanedo, Ramón y Cajal Abogados, S.L.P.
1.6 Reaction to Awards Made Against the State Spain has taken a resistant and combative stance toward the enforcement of investor–state arbitration awards, particularly those rendered under the ECT. Spain has consistently filed appeals for annulment against condemnatory awards in intra-EU arbitrations under the ECT, arguing that they are invalid (citing the Achmea and Komstroy CJEU decisions), and has actively opposed enforcement efforts in multiple juris- dictions (including the US, UK, and Australia) invoking sovereign immunity under domestic laws (eg, the US Foreign Sovereign Immunities Act) to block recogni- tion and execution of awards. Specifically, Spain has sought the annulment of sev- eral awards such as the following. • The Antin Infrastructure Services v Spain (ICSID Case No ARB/13/31) award. Spain alleged that the ICSID tribunal improperly conducted the proceed- ings and that it retained jurisdiction unlawfully. The ICSID ad hoc committee rejected Spain’s annul- ment application. • The RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v King- dom of Spain (ICSID Case No ARB/13/30) award. Spain argued manifest excess of powers by the tribunal by improperly declaring its jurisdiction over an intra-EU dispute. Outcome: The ICSID ad hoc committee rejected the annulment application. • The Foresight Luxembourg Solar 1 S.à r.l. and oth- ers v Kingdom of Spain (SCC Case No 2015/150) award. Spain requested the annulment of the arbi- tral award arguing that the award was invalid under Swedish arbitration law and EU law. Outcome: The Svea Court of Appeal declared the arbitral award invalid, citing incompatibility with EU law – particu- larly the lack of jurisdiction of arbitral tribunals to resolve disputes between EU member states and investors from other member states under the ECT. Spain’s resistance strategy against awards’ enforce- ment efforts has had mixed success. • Within the EU, enforcement is more complex due to CJEU rulings, but Spain’s blanket refusal to comply has drawn criticism from investors and
• NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v Kingdom of Spain (2019, ICSID Case No ARB/14/11) . Some Dutch companies (owned by a US one) invested in two solar thermal plants in Spain. Key legal issues: Jurisdiction and FET standard. Outcome: The tribunal awarded EUR290.6 million, one of the largest ISA awards against Spain, and stated that the representations and assurances of the Spanish authorities were the basis for a legitimate expec- tation that the economic regime would not be changed in a way that would undermine the secu- rity and viability of the investment. Regarding juris- diction, the tribunal said that constitutional laws of the EU and its constant changes and interpreta- tions by the CJEU are of no relevance and that the ECT’s genesis generates a presumption that it is not in contradiction with EU law and, consequently, it cannot retroactively construe Spain’s offer to arbitrate under the ECT as invalid. • Green Power K/S and Obton A/S v Spain (2022, SCC Case No V 2016/135) . Some Danish compa- nies invested in the Spanish solar energy market and were affected by the regulatory measures adopted between 2010 and 2014. The claimants argue that these alterations violated Spain’s obliga- tions under the ECT. Key legal issue: Jurisdiction. Outcome: The primacy of EU law precluded the unilateral offer to arbitrate in Article 26 of the ECT so that the tribunal had no jurisdiction to hear the claims brought by the claimants. • Portigon AG v Kingdom of Spain (2025, ICSID case No ARB/17/15) . A German financial institu- tion financed three solar power plants in Spain. Key legal issue: Investment (whether or not debt instruments and financial arrangements – rather than equity ownership – qualified as “investments” under the ECT and ICSID Convention). Outcome: The tribunal affirmed jurisdiction, holding that project finance loans and hedging instruments can constitute protected investments under the ECT, but dismissed claimant claims. These cases collectively shaped the global debate on regulatory risk, state sovereignty, and investor protec- tion, and they continue to influence Spain’s legal and treaty strategy – including its withdrawal from the ECT.
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