Expert Declaration in Enforcement Proceedings before the United States District Court for the District of Columbia in the case of RWE Renewables GmbH and RWE Renewables Iberia S.A.U. v. Spain

In the case of  RWE Renewables GmbH and RWE Renewables Iberia S.A.U. v. Spain, Case No. 1:21-cv-03232-JMC relating to ICSID Case No. ARB/14/34 (“RWE v. Spain”), Spain was held liable to pay compensation of EUR 28,080,000 for the damages resulting from its wrongful acts as determined in the Tribunal’s decision.

The claimants were two companies – one incorporated in Germany and the other in Spain – i.e., RWE Innogy GmbH and RWE Innogy Aersa S.A.U., respectively. The Claimants have brought their claims under the Energy Charter Treaty of 1994 and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. At the time of writing, both enforcement and annulment proceedings are pending.

In the enforcement proceedings before the United States District Court for the District of Columbia, Professor Steffen Hindelang has submitted an expert declaration in support of the motion(s) of Spain on 16 September 2022.

In his Expert Declaration, Professor Steffen Hindelang addressed the genesis of the conflict between investment arbitration and the EU Treaties. Thereafter he dealt with the questions related to the relevant rules and principles of the 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 RWE v. Spain.