Expert Declaration in Enforcement Proceedings before US Federal Court in InfraRed Environmental Infrastructure GP Limited et al. v. Spain

In the case of InfraRed Environmental Infrastructure GP Limited et al. v. Spain, Case No. 1:20-cv-00817-JDB relating to ICSID Case No. ARB/14/12 (“InfraRed v. Spain”), Spain was found to be liable to pay compensation for breach of Article 10 of the Energy Charter Treaty of 1994 (“ECT”).

The applicants are companies incorporated under the laws of the United Kingdom, namely InfraRed Environmental Infrastructure GP Limited and Ors. The Claimants brought their claims under the ECT and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”). At the time of writing, the enforcement proceedings are pending and the application for annulment has been dismissed.

In the enforcement proceedings before the United States District Court for the District of Columbia, Professor Steffen Hindelang filed an expert declaration on 9 September 2018 in support of Spain’s applications.

In his expert declaration, Professor Steffen Hindelang addressed the genesis of the conflict between investment arbitration and the EU Treaties. He then addressed the issues relating to the relevant rules and principles of EU law, including the principles of autonomy and primacy as articulated by the Court of Justice of the European Union in Achmea B.V. v. Slovak Republic and confirmed in Komstroy LLC v. Republic of Moldova as applicable to Infrared v. Spain.