OA – PORTIGON V SPAIN

 Official Case Records & Arbitration Databases

 

2. Related Investigations (EU State Aid & Commission)

The “investigation” central to this case involves the European Commission’s probe into Spain’s renewable energy subsidies (the 2013 regulatory changes) and its decision that paying arbitration awards constitutes illegal “State Aid.”

3. Victim Groups, Associations & Forums

While Portigon AG is a corporate bank, the “victims” of the regulatory changes in Spain (both small and large) are organized under several major associations. These groups actively campaign on social media and the web regarding these disputes.

  • Anpier (National Association of Photovoltaic Energy Producers):

    • Website: https://anpier.org/

    • Twitter/X: https://x.com/ANPIER_Asoc

    • Context: Represents 5,000+ small Spanish investors affected by the same cuts as Portigon. They frequently post about the “Spanish Renewables Saga” and arbitration outcomes.

  • APPA Renovables (Association of Renewable Energy Companies):

  • Fundeen (Renewable Investment Platform):

    • Website: https://www.fundeen.com/

    • Context: A platform for citizen investment in renewables, often discussing the regulatory stability risks central to this arbitration.

4. Legal Analysis & News (The “Spanish Renewables Saga”)

 

Based on the case details of Portigon AG v. Kingdom of Spain (a dispute over the retroactive removal of renewable energy subsidies) and the broader “Spanish Renewables Saga,” here is my expert opinion on the “Class Members” (peers, similarly affected groups, and potential victims).

In the context of international arbitration, these are not “tort victims” in the traditional sense but rather Claimants (investors) and Affected Parties (those who suffered financial damage but may not have standing in international tribunals).

I. The “Class Members”: Categories of Victims

If this were a class action, the “class” would be divided into three distinct tiers based on the type of injury suffered from the 2013/2014 Spanish regulatory reforms.

Tier 1: The Lenders (Portigon’s Direct Peers)

  • Profile: Banks and financial institutions that provided “Project Finance” (non-recourse loans) for renewable energy plants. When Spain cut the subsidies, the projects could not repay the loans, forcing banks to write off millions in bad debt.

  • Potential Class Members:

    • Portigon AG (formerly WestLB): The lead claimant in your case.

    • Deutsche Bank: heavily involved in similar financing.

    • BNP Paribas: Led major financing for Spanish renewables (e.g., Abengoa projects) before the crash.

    • Intesa Sanpaolo: Major Italian bank with significant project finance exposure in Spain.

    • Natixis & Société Générale: French banks with high exposure to the Spanish solar sector during the boom (2007–2010).

Tier 2: The Institutional Claimants (The “Fund” Class)

  • Profile: Private Equity and Infrastructure Funds that owned the solar/wind plants. These are the primary entities suing Spain alongside Portigon.

  • Key “Class Members” (Known Claimants):

    • Antin Infrastructure Services: (Luxembourg/France) – Won award, seeking enforcement.

    • Eiser Infrastructure: (UK) – Won award, award later annulled, saga ongoing.

    • NextEra Energy: (USA) – Awarded ~€290M.

    • Masdar Solar & Wind: (Abu Dhabi/Netherlands) – Awarded ~€64M.

    • RWE Innogy: (Germany) – Major wind investor.

    • The PV Investors: A massive consortium of 16 different investors (including Ampere Equity Fund, Mercurio Solar) who filed a collective claim.

Tier 3: The Retail & Domestic Victims (The “Invisible” Class)

  • Profile: Small Spanish investors, families, and SMEs who invested their savings in “solar gardens” (Huertas Solares) or green bonds, promised a safe return by the government. Unlike foreign funds, they cannot sue in ICSID (international arbitration) and are stuck in Spanish courts, which have largely ruled against them.

  • Victim Groups:

    • Pensioners: Thousands invested in products like Foresight Solar or direct solar participation schemes.

    • Abengoa Shareholders/Bondholders: The collapse of Abengoa (a Spanish renewables giant) was accelerated by these subsidy cuts, wiping out thousands of small investors.

    • Solaria Investors: Shareholders of Solaria Energía y Medio Ambiente (Publicly Traded: SLR) who saw share value decimated during the reform years (though it has since recovered).

II. Contact Information & Representative Groups

Since you cannot email “the class” directly (privacy laws), your primary access points are the associations that represent these victims.

1. ANPIER (National Association of Photovoltaic Energy Producers)

  • Represents: The ~65,000 small Spanish families and SMEs (“The Retail Class”). They are the most vocal domestic “tort victim” group.

  • Website: anpier.org

  • X (Twitter): @ANPIER_Asoc

  • Facebook: Anpier.Asoc

  • Contact Email: info@anpier.org

  • Key Figure: Miguel Ángel Martínez-Aroca (President).

2. APPA Renovables (Association of Renewable Energy Companies)

  • Represents: The industry side—developers, wind parks, and larger domestic companies.

  • Website: appa.es

  • X (Twitter): @APPA_Renovables

  • LinkedIn: APPA Renovables

  • Contact Emails:

    • General: appa@appa.es

    • Solar specific: fotovoltaica@appa.es

3. Protermosolar (Spanish Association for the Promotion of the Solar Thermal Industry)

  • Represents: The CSP (Concentrated Solar Power) sector, which includes the largest plants and biggest awards (like Antin and NextEra).

  • Website: protermosolar.com

  • X (Twitter): @protermosolar

  • Secretary General: Óscar Balseiro.

4. Plataforma por un Nuevo Modelo Energético (Px1NME)

III. Expert Opinion: The “Tort” Angle

If you are looking at this from a litigation or “victim” perspective, the most “tort-like” damage is found in Tier 3 (Retail Investors).

  • Why: They were induced to invest by State marketing campaigns (“The Sun Can Be Yours”) and then had the rug pulled out.

  • Legal Status: Unlike Portigon (who has a treaty claim), these victims have exhausted domestic remedies.

  • Connection: Many of these small investors took loans from banks in Tier 1, meaning the banks’ losses (Portigon’s claim) are directly tied to the default of these thousands of small “tort victims.”

This proposal is designed for a third-party charity (acting as Amicus Curiae or an advocacy group) to present to the arbitration parties. It aims to bridge the gap between Portigon AG (a financial institution seeking return on capital) and the Kingdom of Spain (a sovereign state citing public interest and EU law defenses), while diverting benefits to the unrepresented “Tier 3” victims (small investors and families).

1. Commitments the Defendant (Spain) Could Offer

Since Spain refuses to pay cash awards citing EU “State Aid” rules, the charity should propose “Alternative Equivalent Value” commitments that bypass the legal blockade while restoring trust.

  • The “Green Bond Swap” (Debt-for-Equity):

    • Proposal: Spain issues special “Green Recovery Bonds” or tax credits to Portigon equivalent to the award value. These instruments would be tradeable but not effectively “cash handouts,” allowing Spain to classify them as financial restructuring rather than illegal state aid.

    • The Commitment: Spain commits to non-retroactivity for these new instruments, codified in a “Stability Pact” that prevents future governments from cutting their value (as happened in 2013).

  • The “Reinvestment Sandbox”:

    • Proposal: Spain allows Portigon to reinvest the owed amount into new, fast-tracked renewable projects in Spain (e.g., Green Hydrogen or Offshore Wind) with a guaranteed regulated rate of return for 20 years.

    • Why it works: It keeps the capital inside Spain (political win) while making the bank whole over time (financial win).

  • The “Tier 3” Protection Clause:

    • Proposal: As part of the settlement, Spain commits to halt all seizure/auction proceedings against small domestic investors (“Tier 3 victims”) who defaulted on loans due to the same subsidy cuts.

2. The “Fine” Amount for Deterrence

  • Expert Context: International arbitration tribunals (ICSID) award compensation (damages), not punitive fines. However, a charity can argue for “Moral Damages” or a “Bad Faith Premium” to serve as a deterrent.

  • Proposed Amount: €250 Million (Estimated)

    • Base Compensation: ~€150–200M (Estimated value of Portigon’s lost loan portfolio).

    • Deterrence “Fine” (Interest Premium): +5% above commercial rates per year of delay.

    • Justification: A simple repayment is not a deterrent; it is merely an “efficient breach” (interest-free loan for the State). To deter Spain from retroactively changing laws again, the cost must be punitive. The charity should propose that any amount above the base damages (the “penalty interest”) be diverted to the social projects below.

3. Project Proposals (Spillovers for Victims)

The charity should propose that a percentage of the settlement (e.g., the “deterrence” portion or unclaimed funds) be managed by an independent trust to fund these specific projects.

Project A: The “Phoenix” Solar Debt Relief Fund

  • Target Beneficiary: The 65,000+ families (Anpier members) who faced bankruptcy.

  • Mechanism: Portigon (as a bank) likely holds some of this “bad debt” or knows who does. The project uses settlement funds to buy back the distressed debt of small solar investors at a discount and forgive it, stopping home evictions and asset seizures.

  • Spillover: Restores the financial livelihood of thousands of Spanish citizens.

Project B: The “Energy Democracy” Grid Upgrade

  • Target Beneficiary: Low-income consumers and the Environment.

  • Mechanism: Fund the installation of municipal self-consumption solar panels on public housing and schools in the regions where the original disputes occurred (e.g., Extremadura, Andalusia).

  • Spillover: Reduces energy poverty (lowering bills for the poor) and decentralizes the grid, preventing future dependence on State subsidies.

Project C: The “Retrospective Justice” Legal Aid Trust

  • Target Beneficiary: Small investors excluded from international arbitration.

  • Mechanism: Establish a legal defense fund to help domestic victims take their cases to the European Court of Human Rights (ECtHR).

  • Spillover: Since small investors cannot sue in ICSID (like Portigon did), this fund gives them a “fighting chance” to access justice using the “winnings” from the big bank’s case.

Summary of Proposal to Parties

Component Proposal to Portigon (Claimant) Proposal to Spain (Defendant) Benefit to “Victims”
Settlement Accept Green Bonds/Tax Credits instead of cash. Issue Sovereign Green Bonds to avoid “State Aid” blocks. Ends the legal limbo; restores market stability.
Deterrence Demand a “Social Premium” on interest. Pay the premium into a Social Trust (not to the bank). Funds the “Phoenix” Debt Relief project.
Action Create a Debt Forgiveness Program for small solar loans. Halt evictions of small solar investors. Immediate financial relief for 65,000 families.

This is a formal draft of an Application for Leave to File a Written Submission as Amicus Curiae (Non-Disputing Party):

TO: The Arbitral Tribunal

ICSID Case No. ARB/17/15

Portigon AG v. Kingdom of Spain

FROM: [Name of Your Charity/NGO]

DATE: December 1, 2025

RE: APPLICATION FOR LEAVE TO FILE A SUBMISSION AS A NON-DISPUTING PARTY

I. INTRODUCTION AND INTEREST OF THE AMICUS

  1. [Name of Charity] respectfully seeks leave from the Tribunal to file this submission regarding the appropriate scope of remedies in the present dispute.

  2. Our organization represents the interests of [describe mission, e.g., sustainable finance, energy justice, and the protection of small-scale investors].

  3. While the Claimant (Portigon AG) is a financial institution and the Respondent is a Sovereign State, the regulatory measures at the heart of this dispute (the 2013/2014 Reforms) caused collateral devastation to over 65,000 small Spanish families and SMEs (“The Invisible Class”).

  4. We submit that any Award or Settlement in this case must account for these broader social impacts to ensure a just and sustainable energy transition.

II. THE PROPOSAL: A “RESTORATIVE JUSTICE” FRAMEWORK

The current deadlock—where the Respondent cites EU State Aid rules to refuse payment, and the Claimant seeks enforcement—benefits no one. We propose a settlement structure that satisfies the Claimant’s commercial rights while serving the public interest.

A. The Commitment: “Green Recovery Instruments” (The Alternative to Cash)

Instead of a cash payout (which the European Commission may block as “illegal State Aid”), we propose the Respondent offer:

  • Asset Class: Sovereign “Green Recovery Bonds” or Tax Credits.

  • Structure: These instruments would be tradeable and equal to the value of the principal debt owed to Portigon.

  • Legal Viability: By classifying this as debt restructuring rather than a “subsidy payout,” the Respondent mitigates State Aid concerns.

  • Stability Clause: The Respondent must attach a “Non-Retroactivity Guarantee” to these instruments, restoring the legal certainty destroyed in 2013.

B. The Deterrence: “Social Premium” Interest

Standard commercial interest is insufficient to deter a State from retroactively altering laws. We propose that the Tribunal or the Parties agree to a “Social License Premium”:

  • The Calculation: An additional 3% to 5% interest applied to the award sum for the duration of the delay.

  • The Destination: To avoid unjust enrichment of the Bank, this premium should not be paid to Portigon. Instead, it must be diverted into an independent “Energy Justice Trust” (detailed below).

III. SPILLOVER PROJECTS: THE “ENERGY JUSTICE TRUST”

We respectfully propose that any funds derived from the “Social Premium” or unclaimed damages be allocated to the following projects to remediate the harm caused to the wider community of “tort victims” who lack standing in this Tribunal.

1. The “Phoenix” Solar Debt Relief Fund

  • The Problem: Thousands of small Spanish investors defaulted on loans held by banks (peers of the Claimant) due to the Respondent’s measures. They currently face asset seizure and eviction.

  • The Mechanism: The Trust uses the “Social Premium” funds to purchase this distressed debt from financial institutions at a discount and extinguish it.

  • The Impact: Prevents bankruptcy for thousands of families and cleans up the balance sheets of banks involved in the sector.

2. The “Energy Democracy” Grid Upgrade

  • The Problem: The regulatory instability halted the growth of distributed generation in Spain for a decade.

  • The Mechanism: Direct financing for municipal self-consumption solar installations in low-income regions (e.g., Extremadura, Andalusia).

  • The Impact: Reduces energy poverty and bypasses the need for future volatile subsidies, aligning with the Respondent’s climate goals.

IV. CONCLUSION

The decisions made in Portigon v. Spain will set a precedent for how the costs of regulatory failure are distributed between States, Banks, and Citizens.

We urge the Tribunal and the Disputing Parties to consider this “Restorative Justice” framework. It offers a path to close this painful chapter by honoring international obligations to the Claimant while delivering tangible relief to the domestic victims of the energy crisis.

Respectfully submitted,

[Signature]

[Title]

[Charity Name]

[Contact Information]

. Who to Contact (Names & Roles)

Based on the case records for ICSID Case No. ARB/17/15, here are the key individuals.

Crucial Warning: In international arbitration, you must never email the arbitrators directly regarding an active case. This is considered ex parte communication and can lead to your proposal being immediately disqualified or ignored to protect the integrity of the proceedings. You must send everything through the ICSID Secretariat, who will then forward it to the Tribunal.

The Arbitral Tribunal (Original Panel)

  • President: Mr. Felipe Bulnes Serrano (Chilean) – Former Minister of Justice of Chile.

  • Arbitrator (Claimant Appointee): Prof. Albert Jan van den Berg (Dutch) – A heavyweight in arbitration; founding partner of Hanotiau & van den Berg.

  • Arbitrator (Respondent Appointee): Prof. Giorgio Sacerdoti (Italian) – Former WTO Appellate Body judge; Professor at Bocconi University.

    • Note: Prof. Sacerdoti has issued dissenting opinions in this case, meaning he may be more sympathetic to arguments about the “public interest” or “EU law” defenses.

The Annulment Committee (New Panel)

Since the case is in the Annulment Phase (as of Oct 2025), the original tribunal is likely functus officio (their job is done). A new ad hoc Committee of three different people has been (or is being) appointed.

  • Action: Address your letter to “The President of the ad hoc Committee” for Case ARB/17/15. (ICSID will route it to the right people).

The Gatekeeper (The Person You Actually Email)

  • Role: Secretary of the Tribunal / Legal Counsel.

  • Direct Email: ICSIDsecretariat@worldbank.org

  • Subject Line Must Read: Strictly Confidential - Amicus Curiae Application - ICSID Case No. ARB/17/15 (Portigon v. Spain)

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