COMMUNICATIONS

                     

FOI LETTERS 9JUL25       FOI LETTERS JAN25


GEMINI SELF-QUESTIONS

Question 1 (For the Spanish Government): Given the European Commission’s stance on State aid and the precedent in Nigeria v P&ID regarding abuses of the arbitral process, what is the Ministry’s current risk assessment regarding the legal enforceability of the remaining multi-billion euro ECT claims, particularly in EU and UK courts?

Answer: The government’s risk assessment must be dire, and our initial communications should frame this reality for them. Their legal position is deteriorating on multiple fronts. Firstly, the core foundation of the intra-EU awards is nullified by the EU’s own legal order, as established by the Komstroy judgment111111111. This is no longer a theoretical argument; our complaint to the European Commission is built on this, and the Commission’s own actions against similar awards confirm that any payments made are considered illegal State aid222222222. Therefore, for the government to continue paying is to knowingly breach EU law, and to defend against recovery is to fight their own legal system. Secondly, the Nigeria v P&ID case provides a powerful new weapon333. It establishes that an arbitral award, even one worth billions, can be successfully challenged in national courts if it was procured through “severe abuses of the arbitral process”4. We can credibly argue that knowingly pursuing an arbitration claim that is invalid under a state’s primary legal order (EU law) constitutes just such an abuse. The risk for the government is therefore no longer merely financial; it is a profound legal and political crisis where continued piecemeal litigation is a high-cost, low-probability strategy.

Question 2 (For the Spanish Government): Beyond the direct financial cost, how does the government quantify the ongoing reputational damage and the loss of investor confidence caused by being in direct conflict with EU law and having to defend dozens of disparate legal challenges simultaneously?

Answer: The damage extends far beyond the more than 1.2 billion euros already paid5. The primary reputational harm stems from an irreconcilable conflict: the government cannot simultaneously be a compliant EU member state and honour these intra-EU awards. This legal schizophrenia projects an image of chaos and unreliability, which is far more damaging to genuine long-term investor confidence than the original regulatory changes were6. Furthermore, we must press them on the internal political damage. By compensating foreign investment funds while their own domestic SMEs and cooperatives are left with nothing for the same regulatory harm, they are creating a deeply divisive and politically toxic narrative of favouring outside interests over their own citizens. This ongoing damage can be quantified through negative international press, strained relations with the European Commission, and the erosion of political capital with a key domestic business constituency.

Question 3 (For the Spanish Government): Considering that our proposed mediation is a confidential, forward-looking commercial process designed to achieve a comprehensive and final settlement with all aggrieved parties simultaneously, how does this compare to the alternative: years of public, backward-looking, and reputationally damaging litigation on multiple fronts with no guarantee of a final or favourable outcome?

Answer: Our proposal must be framed as the only commercially and politically sensible path. The alternative, which they are currently pursuing, is a chaotic multi-front war with no clear exit strategy. The Lauder and CME cases against the Czech Republic serve as the ultimate cautionary tale of how parallel proceedings on the same facts can descend into a costly and contradictory “fiasco”7. Litigation is public, focuses on allocating blame for the past, and offers no creative solutions. In contrast, mediation is confidential, forward-looking, and allows for flexible, “win-win” commercial solutions8. It offers the government a unique opportunity to resolve every facet of this crisis—the illegal State aid issue, the claims from foreign investors, and the grievances of Spanish SMEs—in a single, managed process, thereby restoring legal certainty and political stability.

Question 4 (For Our Prospective Class Members): What is the claimant group’s realistic timeline and expected net recovery after accounting for the significant legal costs, the risk of awards being annulled, and the enforcement difficulties across multiple jurisdictions over the next 5-10 years?

Answer: We must “reality test” the claimants’ optimism. An arbitration award is merely the start of a long and expensive journey. The timeline for enforcement can easily stretch over a decade when a sovereign state resists. The net recovery will be a fraction of the headline award amount after deducting legal fees, the costs of litigation funders, and enforcement expenses in multiple countries. Most critically, the legal risk is substantial. Given the primacy of EU law, any enforcement action within the EU for an intra-EU award is highly likely to fail. Even outside the EU, courts are increasingly unwilling to enforce awards tainted by illegality or public policy concerns. A mediated settlement offers a smaller, but certain and immediate, recovery, which is commercially superior to a larger, uncertain, and distant potential award.

Question 5 (For Our Prospective Class Members): Beyond pure financial compensation, what non-monetary outcomes—such as regulatory reforms, long-term energy contracts, or preferential access to new projects—would provide significant value to the class and could only be achieved through a creative, mediated commercial settlement rather than a simple court award?

Answer: This question is key to expanding their perception of a “win.” A court can only award money. A mediated commercial settlement can deliver far more diverse and potentially more valuable outcomes9. For energy companies and investors, this could include long-term Power Purchase Agreements (PPAs), preferential rights to bid on new green energy projects, or participation in grid infrastructure upgrades. For the broader class, it could involve binding commitments from the Spanish government on future regulatory stability. These creative, forward-looking solutions build future value and relationships, whereas litigation is purely extractive and adversarial.

Question 6 (For Our Spanish SME Members): How can a collective mediation, where your claims are given equal standing alongside international investors, provide a level of leverage and a path to redress that has been inaccessible through the domestic court system?

Answer: For our Spanish SME members, this is their only viable path to justice. The domestic courts have already failed them. They lack the resources to pursue individual international claims. Our mediated approach elevates their grievance from a dismissed domestic issue to a central component of a major international dispute that the Spanish government must resolve. By joining our claimant class, they gain a seat at the table and leverage the pressure being applied by the entire international coalition. The government cannot achieve a comprehensive settlement without addressing their claims, giving them a voice and a chance for recovery they would never have alone.


Answers to Improve Our Public Tender Strategy

Question 1: How can we leverage the evidence from our media and political pressure campaign to pre-define the “problem” in the government’s eyes, so that any resulting tender is drafted with specifications that only COCOO’s proprietary frameworks can meet?

Answer: Our entire public-facing campaign is, in effect, a process of shaping the market for a potential tender. By consistently feeding our research and specific legal analysis—such as the illegality of payments post-Komstroy and the discriminatory treatment of SMEs—to parliamentary committees, media outlets, and EU bodies, we are defining the public narrative. When these institutions then formally question the Spanish government, they will use our terminology and framing. The government, in turn, will be forced to define its internal “need” using this language. A resulting tender will therefore not be for “general legal advice,” but for a highly specific service like, “provision of an integrated legal and economic framework to manage the recovery of funds paid contrary to EU law while providing a redress mechanism for domestically-harmed entities.” This pre-shaping of the tender specifications will make our unique, holistic approach a near-perfect fit.

Question 2: What potential conflicts of interest would large, established legal or consultancy firms have in bidding for this work, and how can we strategically highlight these conflicts to position COCOO as the only truly independent and untainted expert?

Answer: Our investigation must include mapping the advisory ecosystem. We will identify the major law and consulting firms that either a) advised the Spanish government on the original energy reforms, making them complicit in the creation of the problem, or b) represented the investor claimants in the ECT arbitrations, making them directly conflicted. We will compile this intelligence and, through the appropriate channels, subtly raise the issue of independence with procurement officials and political stakeholders. Our core message will be that a problem of this magnitude, which involves rectifying past governmental failures, requires an expert that is completely free from prior involvement. This positions COCOO’s charitable status and lack of commercial history with either side as a primary strategic advantage.

Question 3: If a tender is opened for “legal advisory services,” how do we successfully argue that our integrated model—combining legal strategy, economic analysis, victim class management, and mediation architecture—provides superior Value for Money (VFM) compared to a traditional law firm?

Answer: We will argue that the government’s problem is not simply legal, but is a complex, multi-faceted crisis that requires an integrated solution. A traditional law firm would only address the litigation aspect, forcing the government to then procure separate economic, public affairs, and claims administration services. This fragmented approach is inefficient and more expensive. Our USP is a single, unified solution. We will present a bid that demonstrates clear cost savings and efficiencies by providing a single, expert team to manage all facets of the crisis. We will argue that this integrated model provides superior V.F.M. by eliminating the administrative overhead and coordination problems of managing multiple, separate contractors, thus directly addressing the core objective of public procurement.

Question 4: What strategic partnerships should we be forming now with established economic consultancies or data analysis firms, so that if a tender is announced, we can present a pre-formed consortium that meets every technical requirement, neutralizing the advantage of larger, incumbent suppliers?

Answer: We must act now to mitigate our potential weakness in scale. I will identify a shortlist of reputable, independent economic consultancies and specialist claims-management firms in London, Brussels, and Madrid. We will approach them not with a promise of work, but to sign a Memorandum of Understanding (MoU) to form an exclusive bidding consortium should a relevant tender arise. This allows us to approach any procurement process as the “COCOO Consortium,” immediately demonstrating the full range of required technical expertise and capacity. This proactive strategy transforms us from a niche organisation into the lead integrator of a “best-in-breed” specialist team, ready to compete with and win against any larger, generalist firm


MEDIATION

I have reviewed the links provided, alongside our established case history, to extract intelligence that will strengthen our new strategic pivot towards mediation. The findings are highly valuable and provide us with two powerful levers: a credible “stick” to bring the parties to the table, and a clear justification for why our “carrot”—a COCOO-led mediation—is the only viable option.

First, I have analysed our own doctrine on Mass Arbitration. This concept is the key to creating leverage. Mass arbitration is our strategic alternative to a conventional, slow-moving class action. It involves us acting as the architect for a unified group of claimants, each initiating an individual but coordinated claim against the perpetrator. By streamlining this process technologically and managing it centrally, we can create an overwhelming administrative and financial burden on the target entity—in this case, the Spanish government.

This is the credible threat that underpins our mediation proposal. When we approach the Spanish government, we will not just be suggesting mediation as a good idea; we will be presenting it as the only prudent off-ramp from a guaranteed, high-cost, and reputationally damaging mass claims scenario that we are fully prepared to orchestrate. The prospect of facing thousands of coordinated tort claims provides a powerful incentive for them to see our mediation offer as a more efficient and controlled resolution.

Second, I have reviewed the various consumer protection and dispute resolution platforms you listed, including econsumer.gov, the EU’s Online Dispute Resolution platform, and Spain’s Sistema Arbitral de Consumo. My analysis confirms a critical strategic point: none of these existing systems are equipped to handle this case.

Platforms like econsumer.gov, a collaboration of consumer protection agencies from over 40 countries, are designed for reporting and handling individual consumer complaints about cross-border e-commerce and common scams. Similarly, the EU’s ADR and ODR platforms are built to resolve disputes between individual consumers and traders over a product or service. Spain’s consumer arbitration system is for similar, small-scale domestic issues.

Their inadequacy for our purposes is our strength. We can now definitively argue that our case—a complex, multi-party, mass tort action involving a sovereign state, illegal state aid, and billions in damages—falls completely outside the scope of any existing public ADR framework.

This allows us to position the COCOO-led mediation not as an alternative to be compared with others, but as the only bespoke, viable, and purpose-built solution available. When the Spanish government or the claimant class ask why they should agree to our specific USP, the answer is clear: because there is no other mechanism, public or private, capable of managing and resolving a dispute of this scale and complexity. We are not just another service provider; we are filling a fundamental gap in the international justice system.

In summary, our own mass arbitration strategy gives us the necessary leverage to compel engagement, while the clear inadequacy of all existing public ADR platforms makes our unique mediation proposal the only logical and purpose-built path to a resolution.

Unsolicited Proposal for a COCOO-Led Mediation to Resolve the Spanish ECT Awards Crisis

The Problem: A Legal and Financial Impasse

The Kingdom of Spain and a wide class of investors, businesses, and taxpayers are currently locked in a complex and damaging conflict over the Energy Charter Treaty awards. The situation has resulted in over 1.2 billion euros in public funds being paid out, with billions more at risk. This is not simply a bilateral dispute, but a systemic failure with multiple, fragmented legal fronts. The direct conflict between EU law, as established in the Komstroy judgment, and the ECT framework has created profound legal uncertainty. The contradictory outcomes in parallel arbitrations, such as the Lauder and CME cases against the Czech Republic, demonstrate the risk of continued, uncoordinated litigation which serves only to increase costs and undermine the rule of law1. Furthermore, the entire process is vulnerable to challenges of abuse and fraud, creating risks for all involved, as seen in the landmark Nigeria v P&ID case where an $11 billion award was overturned due to severe abuses of the arbitral process2222. The current path of protracted, multi-jurisdictional litigation is financially unsustainable for the Spanish state and offers no swift or certain remedy for the victims, particularly the Spanish SMEs who have been left without compensation.

The Solution: A Forward-Looking, Mediated Commercial Settlement

COCOO proposes to move beyond this zero-sum conflict by facilitating a comprehensive, confidential, and binding mediation. Mediation is a voluntary process designed not to allocate blame for the past, but to create a commercially viable, forward-looking solution for the future3. Unlike litigation, which deepens conflict, mediation offers a “win-win” outcome where the parties themselves design a settlement that protects their core interests4. It is the only process capable of untangling this complex knot efficiently, saving immense resources and restoring a stable environment for all stakeholders

Why COCOO is Uniquely Positioned to Mediate

While we have been a strong advocate for the victims, it is precisely this deep immersion in the case that makes us the only entity capable of acting as an effective neutral mediator. We understand the motivations, risks, and potential common ground of all parties—the Spanish government, the aggrieved Spanish SMEs, and the wider class of UK and EU investors and competitors—better than any outside party.

Our role as mediator is not to express an opinion or impose a solution, but to act as an expert facilitator, to “reality test” each party’s position in private, and to guide them towards a mutually agreeable outcome6. Our proprietary knowledge of the case’s legal and economic facets will serve as the intellectual framework for the mediation. As a charitable organisation, our primary objective is a successful and cost-effective resolution in the public interest. Our fee structure is a transparent, fixed-fee for expenses, split between the parties, ensuring our neutrality and focus on achieving a settlement

The Steps of the COCOO-Led Mediation Process

Step 1: The Agreement to Mediate

COCOO will formally approach the Spanish government and the identified representatives of the claimant class to enter into a tripartite Mediation Agreement. This legally binding document will be drafted by us and will define the voluntary and confidential nature of the process, the roles of the parties and the mediator, the “Without Prejudice” status of all communications8, and the agreed fee structure.

Step 2: Preparation and Exchange of Position Statements

Each party will prepare a concise Position Statement outlining the history of the dispute, their key interests, and their desired outcomes. In line with best practice, we will strongly encourage the parties to exchange these statements with each other9999. Sharing information, rather than withholding it, is a crucial step in building the trust necessary for a successful mediation and is particularly valuable when dealing with government entities who need lead time to make decisions

Step 3: The Mediation Conference

We will convene a multi-day mediation conference at a neutral venue, requiring at least three separate rooms to ensure privacy for confidential caucuses11. The process will begin with the mediator holding private meetings with each party. In these caucuses, we will confidentially “reality test” their positions, exploring the weaknesses in their case and the significant legal, financial, and reputational risks of continued litigation. We will avoid the common pitfall of insulting the other side and focus on finding palatable, solution-oriented arguments12121212. A joint session will only be held if it is deemed productive and agreed upon by all parties

Step 4: Facilitated Negotiation

The mediator will shuttle between the parties, conveying offers and exploring creative solutions that go beyond simple monetary figures. We will facilitate negotiations on a range of non-monetary options that one party may value more highly than the other, such as policy commitments, a formal redress program for SMEs, and future investment guarantees, which can be key to closing a deal14.

Step 5: Settlement or Conclusion

If an agreement is reached, COCOO will draft a comprehensive and legally binding Settlement Agreement for the parties to sign. If litigation has already commenced, the parties will then jointly file for a court order to dismiss the proceedings based on the private settlement15. If, after all efforts, no agreement can be reached, the mediation will be terminated. All discussions remain confidential, and the parties are free to pursue their rights through litigation or arbitration, having lost nothing but gained a clearer understanding of the dispute16.