La ejecución de los laudos arbitrales en materia de renovables contra España ante los Tribunales de terceros estados no miembros de la UE: el rechazo a la doctrina Achmea/Komstroy del TJUE

Resumen

In recent years, Spain has been in the spotlight with several investors trying to enforce their favourable arbitral awards related to the drastic changes to the regulatory framework in the regime for the promotion of renewable energy in Spain during the years 2010-14. At the same time, the ECJ has established and consolidated the Achmea/Komstroy doctrine according to which investment arbitration between European investors and EU Member States (“intra-EU” arbitration) would be contrary to EU law, whether it is intended to be based on a bilateral investment treaty (Achmea doctrine) or on a multilateral treaty such as the Energy Charter Treaty (Komstroy doctrine). While this doctrine has had little impact among arbitral tribunals, which, except in the case of Green Power v. Spain, while rulings in favour of European investors continue to be issued, the application or refusal to apply the aforementioned doctrine by the courts of EU Member States and by courts of third States raises numerous and complex legal issues, both from the perspective of EU law and, in particular, of International Law. More specifically, Spain's systematic refusal to comply with these awards has been met with a response from the procedural strategy of investors, who are increasingly turning to the jurisdictions of third States that are in favour of recognising and/or enforcing arbitral awards on the basis of commitments provided for in international treaties such as the ICSID Convention or the 1958 New York Convention. This is the case with the courts of the United States, Australia and the United Kingdom, as these are the best jurisdictions for seeking Spanish-owned assets to be executed, and their domestic courts are restrictive when applying the sovereign immunity invoked by Spain.