On 16 May 2018, an ICSID tribunal rendered its award in Masdar Solar & Wind Cooperatief v. Spain (ICSID Case No. ARB/14/1), granting the claimant compensation in excess of EUR 64 million for losses arising from Spain’s violation of its obligation to provide fair and equitable treatment under the Energy Charter Treaty.
The award comes only two months after the decision of the CJEU in the Achmea case, which found the investor-State arbitration clause in the Netherlands and the Czech and Slovak Federal Republic BIT incompatible with EU law. The Masdar tribunal held that the CJEU ruling in Achmea was not applicable to disputes under the Energy Charter Treaty (to which both the EU and all its Member States are a party). In the tribunal’s view, “EU law is not incompatible with the provision for investor-State arbitration contained in Part V of the ECT, including international arbitration under the ICSID Convention. The two legal orders can be applied together […] and nothing in EU law can be interpreted as precluding investor-State arbitration under the ECT and the ICSID Convention.”
The award is available for download here.