Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain
ICSID · Investment (ICSID and treaty) · Spain · 15 Jun 2018
Why it matters
This award is one of the early ICSID decisions on Spain's renewable energy reforms, confirming that Spain's retroactive changes to the feed-in tariff regime violated the FET standard. It set a precedent for dozens of similar claims against Spain, establishing that specific commitments made to investors can create legitimate expectations protected under the ECT, even in the face of economic necessity.
Summary
The case concerns two Luxembourg and Dutch companies (Antin) that invested in two concentrated solar power plants (Andasol-1 and Andasol-2) in Spain. They relied on Spain's regulatory framework (RD 661/2007) which offered a generous feed-in tariff for renewable energy. Spain later introduced several measures (Law 15/2012, RDL 2/2013, RDL 9/2013, Law 24/2013, RD 413/2014, Ministerial Order IET/1045/2014) that reduced the tariffs and imposed a new tax on electricity production. Antin claimed these measures breached the ECT's fair and equitable treatment (FET) standard, the umbrella clause, and amounted to unreasonable impairment. The Tribunal upheld jurisdiction over most claims except those related to the tax (TVPEE). On the merits, the Tribunal found that Spain had made specific commitments to maintain the tariff regime, creating legitimate expectations for investors. The changes were not proportionate and violated the FET standard. The Tribunal rejected the umbrella clause claim. It awarded EUR 112 million in damages based on a discounted cash flow analysis, plus interest at 2.07% compounded monthly. The Tribunal also ordered Spain to pay 60% of the arbitration costs and 60% of Antin's legal costs.
The detail
Parties: Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. (formerly Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V.) v. Kingdom of Spain
Case number: ICSID Case No. ARB/13/31
Outcome: Spain breached the fair and equitable treatment standard under the Energy Charter Treaty; Spain ordered to pay EUR 112 million plus interest and costs.
Quantum: EUR 112 million
Applicable law: Energy Charter Treaty (ECT), ICSID Convention, international law
Issues in play: The dispute involved the tension between Spain's sovereign right to modify its renewable energy regulatory regime and the investors' legitimate expectations of stability under the FET standard of the ECT.
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