• Search

The Guide to Energy Arbitrations - Second Edition

Investment Disputes Involving the Renewable Energy Industry Under the Energy Charter Treaty

The renewable energy sector often depends on large, upfront investments, which can only be recouped over a long period. Given the substantial initial capital investment required, many countries (particularly those in the European Union) have enacted schemes, such as feed-in tariffs or other special rates, to encourage long-term investment. Investors in the renewable energy sector have a strong interest in the stability of this regulatory regime – including, significantly, the continuity of any incentive schemes for renewable energy over the period of expected recovery – and protection from unwarranted government policy changes that could amount to expropriation or a denial of fair and equitable treatment.

An important response to investors’ desire for assurances of stability is the Energy Charter Treaty (ECT).[1] Originally concluded in the aftermath of the Cold War to integrate the former Soviet Union’s resource-rich energy sectors into the European market, the ECT now provides an international legal framework for energy cooperation, particularly in Europe.

The past decade saw a significantly increased level of investment, including foreign investment as a result of international initiatives on the development of alternative energy sources.[2] Many countries have implemented government subsidies and support schemes to encourage investment in renewable energy. These measures were designed to favour renewable resources over continued use of fossil fuels and to account for the significant upfront expense associated with the new technologies.[3]

Pending renewable energy arbitrations under the ECT

As the favourable subsidies and support schemes resulted in significant investment in renewables, and faced with a global financial crisis, many European countries scaled back their original investment incentives. At times, these changes resulted from those countries’ obligations under EU law.

These regulatory changes, in turn, have sparked a considerable number of legal disputes, including investor–state arbitrations under the ECT. Spain, the Czech Republic and Italy in particular have found themselves facing disputes following changes in regulatory structures for energy investment.[4] Arbitration claims brought under the ECT have focused on two protections: (1) the requirement that the host state extend fair and equitable treatment to foreign investors, and (2) the prohibition on expropriation.

Spain

For over a decade, Spain had laws subsidising new investments in wind energy, solar energy and waste incineration. The Spanish Promotion Plan for Renewable Energy, originally promulgated in 2000 and revised in 2005, provided for grants, tax incentives, soft loans and loan guarantees. These incentives attracted tens of billions of euros in investment in renewable energy assets from outside investors.[5] As a result of these policies, Spain became one of the largest markets for investments in ‘green energy’, with an estimated value of €13 billion in renewable energy assets.[6] One incentive offered by Spain was a feed-in tariff, which permitted owners of renewable energy plants (particularly solar plants) to sell electricity at a higher rate for the first 25 years and at a reduced rate for the plant’s remaining lifetime.[7]

Beginning in 2008, the Spanish government began to reduce these incentives to address a significant ‘tariff deficit’ – the difference between the amounts collected from regulated feed-in tariffs and those collected from access tariffs set on the open market – as revenue from the state-subsidised prices failed to cover costs.[8] By 2012, Spain had largely eliminated these incentives for new photovoltaic systems.[9] The government also issued decrees imposing a tax on power generation.[10]

In response, several groups of investors brought arbitration claims under the ECT. As of 11 August 2016, foreign investors had filed at least 22 arbitration claims against Spain at ICSID,[11] with other cases pending before tribunals composed under the UNCITRAL or the Stockholm Chamber of Commerce (SCC) rules.[12] In one of the longest-pending arbitrations – the PV Investors case – Spain allowed the claims made by investors in the photovoltaic (solar) sector to be heard by a single UNCITRAL arbitral tribunal.[13] The PV Investors tribunal subsequently affirmed that it has jurisdiction over claims that Spain breached its obligations under the ECT – reportedly the first jurisdictional ruling in any of the renewable energy arbitrations brought against Spain.[14]

In January 2016, in Charanne, another UNCITRAL tribunal rendered the first award in these disputes.[15] As in the PV Investors case, the tribunal rejected Spain’s jurisdictional objections.[16] In a divided decision, however, the tribunal then dismissed the investors’ claims on the merits, finding that Spain’s actions did not constitute indirect expropriation or deprive investors of fair and equitable treatment.[17] The decision, however, only concerned Spain’s modifications to its renewable energy investment regime enacted in 2010, and not the more significant changes enacted in 2013.[18]

The Czech Republic

In 2005, the Czech Republic introduced a feed-in tariff for solar-generated electricity sold directly to electrical grid operators, guaranteeing that the tariff could not be decreased by more than 5 per cent a year. Subsequently, however, the Czech Republic sought to roll back the payments required under the tariff, and in 2010 imposed a retroactive levy on revenues from solar electricity, which was upheld by the Czech Constitutional Court.[19] The Czech government then passed legislation authorising faster reductions in the tariff rate.[20]

Foreign investors in the Czech photovoltaic power sector commenced several arbitration proceedings, arguing that the regulatory changes to the feed-in tariff violated the ECT and intra-EU bilateral investment treaties (BITs), and breached investors’ legitimate expectations. In May 2013, a group of ten German, UK and Cypriot investors, led by Antaris Solar GmbH, commenced arbitration under the UNCITRAL rules, seeking damages in the range of €50 million to €70 million.[21] Because the Czech Republic objected to a consolidated proceeding, the arbitration continued before six different tribunals, though with some overlap among arbitrators.[22] A German energy company (JSW Solar) filed an additional arbitration in the latter half of 2013, also under the UNCITRAL rules.[23] The claimants, however, limited their claims to alleged violations of the Germany–Czech Republic BIT, and eschewed invoking the ECT, possibly because of the limitations that Article 21 of the ECT places on claims related to taxation measures.[24] As of December 2016, those seven solar-related arbitrations appear to be pending, with the Czech Republic receiving two additional notices of disputes.[25]

Italy

A feed-in tariff was similarly at the heart of Italy’s support scheme for renewable energy sources. The tariff was originally enacted in 2003 by Legislative Decree No. 387/2003.[26] The feed-in tariff contributed to a significant growth of the Italian renewable energy sector, and the photovoltaic market in particular.

The incentives system, however, was costly, and eventually became unaffordable. For instance, the three-year €6.7 billion scheme approved in June 2012 was completely exhausted by July 2013.[27] That same year, Italy ceased to grant incentives to new plants. Moreover, in 2014, the Italian government adopted the ‘spalma incentivi’ (‘incentive spreading’) decree, which retroactively mandated a reduction in the feed-in tariff for photovoltaic plants larger than 200kW. Investors were required to select one of the following new incentive regimes: (1) tariffs granted for 24 years instead of 20, but subject to gradual reductions throughout the term; (2) reduced incentives for the initial period of the investment, in exchange for higher incentives for the subsequent period on the basis of percentages established by the competent authority; or (3) an annual decrease in the incentives by 6–8 per cent (depending on the plants’ peak power) for the remainder of the incentives’ duration.[28]

The Italian Constitutional Court upheld the changes to the incentive regime on 7 December 2016. The court rejected investors’ arguments that the 2014 decree arbitrarily and unreasonably interfered with existing long-term contracts, in a breach of their legitimate expectations.[29]

Like the Spanish and Czech cases, foreign investors in Italy’s renewable energy sector challenged the changes to the investment incentive regime in arbitration under the ECT. The first arbitration was commenced in 2014, and there are currently six arbitrations filed against Italy at ICSID,[30] with other cases pending before the SCC.[31] As of March 2017, none of these arbitrations has been decided yet.[32]

On 31 December 2014, Italy announced its withdrawal from the ECT, effective 1 January 2016. Although the Italian government justified its decision by the desire to reduce the costs of participating in international organisations, the risk of further disputes under the ECT (and potential adverse decisions) may have influenced the withdrawal.[33] Nevertheless, pursuant to the ECT’s sunset clause in Article 47, the treaty’s protections continue to apply to investments made before January 2016 for 20 years.[34]

Key legal issues in the pending renewable energy arbitrations

The ECT offers a variety of broad protections to foreign investors in the energy sector. These are similar to protections typically found in BITs, such as fair and equitable treatment, constant protection and security, non-discrimination, most-favoured nation, fulfilment of commitments, prohibition against expropriation, and compensation of losses. While the renewable energy arbitrations brought under the ECT are generally confidential, several legal issues are likely to be central to these proceedings.[35] These issues centre on the question of whether the regulatory and legislative changes to the renewable energy incentive regimes breached the ECT’s guarantee of fair and equitable treatment or constituted an indirect expropriation.[36]

Fair and equitable treatment and investors’ reasonable expectations

Article 10(1) of the ECT contains one of the most frequent bases asserted in investor–state disputes – the fair and equitable treatment requirement (FET). Under Article 10(1), each ECT signatory promised to:

encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations.

The FET standard is ‘one of the most actively debated concepts in investment protection law’,[37] and arbitral tribunals and commentators have offered varied constructions of its requirements.[38] The FET requirement is part of most BITs and multilateral agreements (such as NAFTA), and has been addressed in many investor–state arbitration disputes.

The FET standard commonly contains the following requirements:

  • the host state must act in a transparent manner;
  • the state is obliged to act in good faith;
  • the state’s conduct cannot be arbitrary, grossly unfair, unjust, idiosyncratic, discriminatory, or lacking in due process; and
  • the state must respect procedural propriety and due process.[39]

The Spanish, Czech and Italian renewable energy arbitrations are likely to focus on whether the host state acted with consistency, transparency and reasonableness in modifying (or eliminating) the existing incentive regime, and, above all, whether investors had reasonable and legitimate expectations that were breached as a result of the state’s actions. There is no universally applicable standard as to when investors’ expectations deserve treaty protection under the FET requirement; any evaluation will depend on the facts.

There are two acknowledged approaches to determining when investor expectations are reasonable so as to warrant treaty protection. The first approach requires the host state to have made clear assurances to the investor regarding the specific business relationship. Under the second, more permissive approach, ‘expectations could be created based on assurances provided in generally applicable laws of a country, and more generally, upon the existing framework at the time of the investment’.[40] Thus, as the Tecmed arbitral tribunal explained, the host state should act ‘consistently, transparently, and in a predictable and rational manner’, so as not to ‘affect the basic expectations that were taken into account by the foreign investor to make the investment’.[41] The tribunal in CMS v. Argentina – an influential decision with respect to determining when a change in the host nation’s legal framework constitutes a breach of the FET – similarly observed that the stability and predictability of the legal and regulatory environment is an important component of fair and equitable treatment.[42]

The FET analysis balances numerous considerations, including the host state’s right to regulate, which may involve changing previous regulations, where necessary. As the tribunal in EDF (Services) Limited v. Romania noted, the FET requirement cannot mean ‘the virtual freezing of the legal regulation of economic activities, in contrast with the State’s normal regulatory power and the evolutionary character of economic life’.[43] Accordingly, arbitral tribunals have emphasised, in rejecting claims based on an alleged breach of the FET: ‘No investor may reasonably expect that the circumstances prevailing at the time the investment is made remain totally unchanged’. Rather, a determination ‘whether frustration of the foreign investor’s expectations was justified and reasonable’ requires consideration of ‘the Host State’s legitimate right subsequently to regulate domestic matters in the public interest’.[44]

A tribunal is more likely to find a breach of the FET requirement where the host state, implicitly or explicitly, made specific representations, commitments, assurances or promises on which the foreign investor relied in making the investment.[45] Absent a specific commitment from the host state, an investor may face a steeper burden, especially when relying on ‘legislation or regulation of a unilateral and general character’.[46] As the tribunal in Total v. Argentina stressed, the investor is only entitled to the host state’s ‘regulatory fairness’ or ‘regulatory certainty’, which provides limited protection against regulatory changes that impair the recovery of operation costs, the amortisation of investments and the achievement of a reasonable return.[47] Unlike the France–Argentina BIT, which was at issue in Total, however, the ECT expressly references, in Article 10(1), the host state’s duty to create ‘stable’ and ‘transparent’ conditions for foreign investments, as well as the ‘commitment to accord at all times . . . fair and equitable treatment’ to such investments, giving particular weight to long-term stability. As some commentators have suggested, this provision could serve as the basis for affording the legitimate expectations of investors operating in the energy field comparatively greater protection against regulatory changes.[48]

A change in the host state’s regulatory framework will not necessarily lead to a finding of a breach of the FET guarantee. Indeed, in Charanne – the first renewable energy arbitration that resulted in an award – the tribunal concluded that Spain did not breach its FET guarantee under the ECT. As the tribunal noted, ‘in the absence of a specific commitment, an investor cannot have a legitimate expectation that existing rules will not be modified.’[49] The tribunal then observed that Spanish law pre-dating the investment allowed Spain to modify its solar energy regulations (and so such changes were objectively foreseeable), and that Spain’s commitments to investors were not ‘sufficiently specific’ to create an expectation of a frozen legal environment.[50] The tribunal also rejected the investors’ claim (which relied on CMS v. Argentina) that Spain’s regulatory changes operated retroactively and therefore breached their acquired rights to operate under the initial incentive regime. Distinguishing CMS as involving a specific contractual commitment, the tribunal viewed the retroactivity argument as simply a restatement of the unsuccessful argument that investors had a legitimate expectation in the original regulatory framework.[51]

In examining the ECT’s guarantee of fair and equitable treatment, subsequent tribunals are also likely to assess whether investors had legitimate expectations in the immutability of the state’s original incentive regime. This inquiry would examine the reasonableness of such expectations in light of the specificity of the state’s commitments and the foreseeability that the existing regime may be altered.[52]

Indirect expropriation

Another legal issue likely involved in pending arbitrations concerning renewable energy incentive schemes is a claim of indirect expropriation. The ECT does not have a specific provision addressing indirect expropriation, but the treaty’s Article 13 prohibits expropriation of investments unless ‘justified by public interest purposes, carried out under due process of law and accompanied by a prompt, adequate and effective compensation.’

In Nykomb v. Latvia, the tribunal addressed claims of indirect expropriation under the ECT, and construed such expropriation narrowly.[53] There, the investor entered into an agreement with the Latvian state energy distributor to produce energy from a cogeneration plant. According to the rules applicable at the time, the investor would have received a double tariff for eight years. Just before the plan commenced operation, Latvia revoked this favourable treatment and introduced retroactively a significantly lower tariff.[54] The investor argued that the withdrawal of the original tariff constituted ‘indirect’ or ‘creeping’ expropriation, because it rendered the enterprise not ‘economically viable’ and the ‘investment worthless’.[55] The arbitral tribunal disagreed and concluded that the loss of the economic value of the investment did not, by itself, constitute expropriation, because the state did not take possession of the enterprise or its assets, or interfere with the shareholders’ rights or management control.[56]

The Charanne tribunal likewise rejected the investors’ argument that Spain’s modification of the incentive regime constituted indirect expropriation because it affected their returns for the investment. Adopting the standard articulated in such decisions as CMS and Electrabel (as well as other decisions in arbitrations brought under NAFTA or BITs), the Charanne tribunal observed that indirect expropriation ‘implies a substantial effect on the property rights of the investor,’ including ‘a loss of value that could be equal by its magnitude to a deprivation of the investment.’[57] The tribunal, however, observed that the investors’ plant remained operational and profitable, and held that, ‘although the profitability of [the plant] could have been seriously affected,’ a reduction in profitability (and any resulting decrease in the value of the shares) in itself does not amount to indirect expropriation.[58]

Although the Charanne tribunal rejected the expropriation claim, it adopted the broader definition of indirect expropriation applied by tribunals that addressed investors’ claims under NAFTA and BITs, rather than the more narrow definition made in Nykomb. It therefore remains to be seen what approach other arbitral tribunals will adopt when determining whether the reductions of a feed-in tariff or, more broadly, the roll-back of the renewable energy investment incentive regimes, deprive investors of the use and benefit of their investment to such an extent to constitute an indirect expropriation under the ECT. As the Charanne award indicates, such decisions will likely examine closely the specific facts and circumstances of each case. As with the question of whether a state’s action constitutes a breach of the FET obligation, these tribunals are also likely to balance protection of investors’ expectations with the state’s right to change the legal framework and pursue new policies.

The European Commission’s role in ECT renewable energy arbitrations

A final issue of note is the European Commission’s efforts to participate as amicus curiae in renewable energy arbitrations under the ECT.[59] The Commission’s participation raises several complex issues regarding the interaction between the ECT and EU law, including possible defences based on EU state-aid rules or jurisdictional objections to intra-EU investor disputes.

The Commission’s first involvement as amicus curiae in an ECT arbitration came in Electrabel, where the tribunal permitted it to participate to discuss the relationship between EU law and the ECT.[60] Similarly, in Charanne the tribunal acknowledged the Commission’s amicus brief and, while specifying that only the arguments of the parties would be addressed, noted that it will consider them in light of the Commission’s ‘reflection’.[61] Since Charanne, the Commission sought to submit amicus briefs in some of the pending renewable energy arbitrations in Spain; however, the tribunals rejected those requests, viewing the Commission’s participation as premature (but leaving open the possibility of the Commission’s participation in future stages of the proceedings).[62] The Commission similarly has sought to participate in some of the Czech renewable energy arbitrations.[63]

The Commission’s involvement implicates two substantive issues. The first involves a possible defence by the host state against investors’ claims based on EU rules on state aid. Thus, in the Czech cases, the Commission reportedly has taken the position that EU law may prohibit some of the original solar investment incentives the Czech Republic offered to investors, and therefore required their elimination.[64] Such arguments would be consistent with the position that the Commission adopted in prior ECT arbitrations. Thus, in Electrabel, it argued that Hungary did not breach its treaty obligations because the changes to Hungary’s regulatory regime were created to comply with EU law.[65]

The second issue would be whether, given the Commission’s position that the ECT does not apply to intra-EU disputes, the treaty permits arbitrations between EU-based investors and EU member states.[66] The Charanne tribunal, for instance, rejected the Commission’s (and Spain’s) argument that the EU’s status as a signatory of the ECT destroyed Article 26’s diversity-of-nationality requirement. The tribunal stressed that the EU’s status as a party to the ECT does not mean that EU member states ‘ceased to be’ parties to the ECT as well.[67] Applying a contextual inquiry, the tribunal observed that the asserted claims were ‘not based on EU actions,’ but on those of Spain, and were directed against Spain, and not the EU.[68]

In the Czech renewable energy arbitrations, the Commission reportedly argued that, while the ECT does not contain an explicit disconnection clause that would render it inapplicable in intra-EU disputes, such restriction should be inferred from the treaty’s context, purpose and drafting history.[69] In 1998, in a statement submitted to the Secretariat of the Energy Charter, the Commission invoked the ECT’s Article 26(3)(b)(ii) (which provides for the possibility of a partial disconnection clause) to argue that the Commission has not assented to arbitration under the ECT with regard to any case brought by EU nationals because (the Commission stated) ‘the Communities’ legal system provides for means’ of resolving such disputes.[70] It is unclear, however, whether this statement (which was issued only on behalf of the Commission) creates international legal obligations for the EU member states, either by itself or by operation of EU law.[71]

Moreover, it is unclear to what extent the EU’s legal system provides a viable option to resolve investors’ claims.[72] Consequently, as some commentators argued, EU nationals remain eligible to bring international arbitration claims under the ECT against other member states – an option that may be more attractive to investors.[73] This approach finds its support in the decision of the Charanne tribunal, which rejected the argument that the ECT contained any implicit disconnection clause, finding no conflict between the ECT and EU law.[74] It remains to be seen whether forthcoming decisions in other renewable energy arbitrations will adopt the same reading of the ECT and EU law.

Conclusion

As discussed above, the arbitral tribunals in the pending renewable energy claims have little direct precedent to examine under the ECT, and will seek guidance in decisions rendered in other investor–state investment disputes. The Charanne decision – the first award rendered in these arbitrations – appropriately relied to a significant extent on the general principles of fair and equal treatment and the prohibition against indirect expropriation elaborated by international arbitral tribunals. As further renewable energy disputes progress to their resolution, these arbitrations will further define the parameters of the host states’ regulatory powers with respect to renewable energy investments, as well as the intersection between the ECT and EU law.

Notes


[1]    Energy Charter Treaty, 17 December 1994, 2080 U.N.T.S. 95 (entered into force on 16 April 1998).

[2]    See, e.g., Kyoto Protocol of 11 December 1997 and Directive 2003/87/EC (establishing the EU Greenhouse Gas Emissions Trading Scheme). Both entered into force in 2005. The European Union in particular has either required or encouraged its member states to set up support mechanisms for electricity generation from renewable sources. See K. Talus, ‘Introduction: Renewable Energy Disputes in Europe and Beyond: An Overview of Current Cases’, 12 Transnat’l Disp. Mgmt., May 2015, at 3-4.

[3]    See J.M. Tirado, ‘Renewable Energy Claims under the Energy Charter Treaty: An Overview’, 12 Transnat’l Disp. Mgmt., May 2015, at 4-5.

[4]    An arbitration has also been commenced against Bulgaria. See ENERGO-PRO a.s. v. Bulgaria, ICSID Case No. ARB/15/19; see also J. Dahlquist, ‘Bulgaria is Hit with Energy-Related ICSID Energo-Pro a.s.’, Inv. Arb. Rep., 28 May 2015.

[5]    Arif Hyder Ali, ‘In the Eye of the Storm: Spain’s Nexus to Investment Disputes’, 18 Spain Arb. Rev. 5-36 (2013).

[6]    Id.

[7]    See Tirado, supra note 4, at 5 – 6. See also S. Mejia ‘The Protection of Legitimate Expectations and Regulatory Change: The Spanish Case’, Spain Arb. Rev. 113-132 (2014).

[8]    See Tirado, supra note 4, at 6-7.

[9]    Pablo del Rio & Pere Mir-Artigues, ‘A Cautionary Tale: Spain’s Solar PV Investment Bubble’, International Institute for Sustainable Development (IISD) (February 2014); see also Tirado, supra note 4, at 6-7 (discussing the Spanish Royal Decrees issued between 2008 and 2014, which ultimately abolished all preferential tariffs and premiums for new projects and set a tax on the production and transfer of energy into the grid).

[10]   Ali, supra note 6, at 13 & n.35.

[11]   See OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Spain, ICSID Case No. Arb/15/36; E.ON SE, E.ON Finanzanlagen GmbH and E.ON Iberia Holding GmbH v. Spain, ICSID Case No. ARB/15/35; Cavalum SGPS, S.A. v. Spain, ICSID Case No. ARB/15/34; JGC Corp. v. Spain, ICSID Case No. ARB/15/27; KS Invest GmbH and TLS Invest GmbH v. Spain, ICSID Case No. ARB/15/25; Matthias Kruck, et al. v. Spain, ICSID Case No. ARB/15/23; Cube Infrastructure Fund SICAV, et al. v. Spain, ICSID Case No. ARB/15/20; BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16; 9REN Holding S.a.r.l v. Spain, ICSID Case No. ARB/15/15; STEAG GmbH v. Spain, ICSID Case No. ARB/15/4; Stadtwerke München GmbH, RWE Innogy GmbH, et al. v. Spain, ICSID Case No. ARB/15/1; RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Spain, ICSID Case No. ARB/14/34; RENERGY S.à.r.l. v. Spain, ICSID Case No. ARB/14/18; InfraRed Environmental Infrastructure GP Limited, et al. v. Spain, ICSID Case No. ARB/14/12; NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ARB/14/11; Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1; Eiser Infrastructure Ltd. and Energia Solar Luxembourg S.à.r.l. v. Spain, ICSID Case No. ARB/13/36; Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Spain, ICSID Case No. ARB/13/31; and RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. v. Spain, ICSID Case No. 13/30; see also Talus, supra note 3, at 7;Tirado, supra note 4, at 17-19; Clovis Trevino, ‘An Update on Renewable Energy Claims Against Spain’, Inv. Arb. Rep., 9 June 2015; Douglas Thomson, ‘New Solar Claim Means More Pain for Spain’, Global Arbitration Review, 12 May 2015; Clovis Trevino, ‘Spain Round-Up: Even as European Commission Throws up Red Flags, Two New Claims Land at ICSID, and Tribunal Members Are Finalized in Another’, Inv. Arb. Rep., 27 January 2015.

[12]   See PV Investors v. Spain (UNCITRAL; commenced in 2011); Charanne and Construction Investments, et al. v. Spain (SCC; registered in 2013); Isolux Infrastructure Netherlands B.V. v. Spain CSP Equity Investment S.à.r.l. v. Spain (SCC; registered in 2013); CSP Equity Investment S.à.r.l. v. Spain (SCC; registered in 2013); see also Talus, supra note 3, at 7;Tirado, supra note 4, at 15-17.

[13]   Luke Eric Peterson, ‘Following PCA Decision, Czech Republic Thwarts Move by Solar Investors to Sue in Single Arbitral Proceeding; Meanwhile Spain Sees New Solar Claim at ICSID’, Inv. Arb. Rep., 1 January 2014. Spain afterwards raised a jurisdictional objection to hearing claims that it considered to be unrelated in a ‘consolidated’ fashion. Id.

[14]   Luke Eric Peterson, ‘Intra-EU Treaty Claims Controversy: New Decisions and Developments in Claims Brought by EU Investors vs. Spain and Hungary’, Inv. Arb. Rep., 24 December 2014.

[15]   Charanne and Construction Investments, et al. v. Spain (SCC; registered in 2013), Award, 21 January 2016.

[16]   Id. para.450.

[17]   Id. para. 549. Arbitrator Guido Santiago Tawil dissented in part, and would have found that Spain’s modification of its investment regime frustrated investors’ legitimate expectations and therefore breached obligations of fair and equitable treatment. See infra.

[18]   The 2013 changes were at issue in Eiser Infrastructure Ltd. and Energia Solar Luxembourg S.à.r.l. v. Spain, ICSID Case No. ARB/13/36, where an ICSID tribunal, in May 2017, rendered a unanimous award finding that Spain had failed to accord fair and equitable treatment, and awarding the investors €128 million. See Tom Jones, ‘Spain Suffers Loss in Solar Power Case’, Global Arbitration Review, 5 May 2017.

[19]   Jarrod Hepburn, ‘Czech Solar Arbitrations Set To Proceed, as Constitutional Court Upholds Retroactive Levy’, Inv. Arb. Rep., 13 June 2012.

[20]   Luke Eric Peterson, ‘Brussels’ Latest Intervention Casts Shadow over Investment Treaty Arbitrations Brought by Jilted Solar Energy Investors’, Inv. Arb. Rep., 8 September 2014; see generally Tirado, supra note 4, at 7-8 & nn.35-39 (discussing regulatory changes in the Czech Republic).

[21]   See Antaris Solar GmbH, et al. v. Czech Republic (UNCITRAL; registered in 2013); see also Luke Eric Peterson, ‘Solar Investors File Arbitration Against Czech Republic, Intra-EU BITs and Energy Charter Treaty at Center of Dispute’, Inv. Arb. Rep., 15 May 2013.

[22]   See Antaris Solar GmbH, et al. v. Czech Republic (UNCITRAL; commenced in 2013); see also Luke Eric Peterson, ‘Solar Investors File Arbitration Against Czech Republic, Intra-EU BITs and Energy Charter Treaty at Center of Dispute’, Inv. Arb. Rep., 15 May 2013.

[23]   See Jürgen Wirtgen, Stefan Wirtgen & JSW Solar GmbH & Co. KG v. Czech Republic (UNCITRAL; commenced in 2013); see also Luke Eric Peterson, ‘In Shadow of Mass Solar Claims, Another UNCITRAL BIT Arbitration Quietly Moves Forward Against Czech Republic’, Inv. Arb. Rep., 10 January 2014; Sebastian Perry & Kyriaki Karadelis, ‘Sun Rises on Czech Energy Claims’, Global Arbitration Review, 19 February 2014.

[24]   Peterson, ‘In Shadow of Mass Solar Claims’, supra note 24; Tirado, supra note 4, at 20.

[25]   Luke Eric Peterson, ‘Czech Republic: Govt Releases Cache of BIT Awards, Strives to Collect Costs Orders, and Currently Faces Eleven Pending Treaty Claims’, Inv. Arb. Rep., 24 February 2015. For an overview of the claims pending against the Czech Republic as of May 2015, see Tirado, supra note 4, at 20; Luke Eric Peterson ‘Czech Republic Round-up: German Co. files $125 mil BIT Claim; Finance Ministry says that Russian Investor has yet to file threatened notice; updates on status of other cases’, Inv. Arb. Rep., 6 December 2016.

[26]   For a detailed analysis of the Italian renewable energy legal framework, see Z. Brocka Balbi, ‘The Rise and Fall of the Italian Scheme of Support For Renewable Energy From Photovoltaic Plants’, 12, Transnat’l Disp. Mgmt., May 2015 and S.F. Massari, ‘The Italian Photovoltaic Sector in two Practical Cases: How to Create an Unfavorable Investment Climate in Renewables’, 12 Transnat’l Disp. Mgmt., May 2015.

[27]   Massari, supra note 27.

[28]   Article 26, Legislative Decree no. 91 of 24 June 2014.

[29]   Italian Constitutional Court Judgment no. 16/2017, issued on 7 December 2016, published on 24 January 2017.

[30]   See VC Holding II S.a.r.l. and others v. Italy, ICSID Case No. ARB/16/39; ESPF Beteilingungs GmbH, ESPF Nr. 2 Austria Beteilingungs GmbH, and InfraClass Energie 5 GmbH & Co. KG v. Italy, ICSID Case No. ARB/16/5; Eskosol S.p.A. in liquidazione v. Italy, ICSID Case No. ARB/15/50; Belenergia S.A. v. Italy, ICSID Case No. ARB/15/40; Silver Ridge power BV v. Italy, ICSID Case No. ARB/15/37; Blusun SA, Jean-Pierre Lecorcier and Nichael Stein v. Italy, ICSID Case No. ARB/14/03.

[31]   See Greentech Energy Systems and Novenergia v. Italy (SCC; registered in 2015). For other cases filed at the SCC, see Lacey Yong, ‘Italy faces another solar claim’, Global Arbitration Review, 13 December 2016.

[32]   See e.g., Blusan S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. ARB/14/3; registered in 2014; Silver Ridge B.V. v. Italian Republic, ICSID Case No. ARB/15/37; registered in 2015), reportedly as a result of the changes to Italy’s solar energy incentive regime. See Tirado, supra note 4, at 21;Talus, supra note 3, at 7 & n. 30; Kyriaki Karadelis, ‘Italy Risks Claims over Solar Subsidies’, Global Arbitration Review, 8 December 2014; Tom Jones, ‘Italy and Spain Feel the Heat’, Global Arbitration Review, 17 August 2015. (Greentech Energy Systems and Novenergia v. Italy (SCC, registered in 2015)) filed with the Stockholm Chamber of Commerce (SCC) by investors in Italy’s photovoltaic (solar) sector. See Tom Jones, ‘Italy and Spain Hit with New Solar Claims’, Global Arbitration Review, 10 August 2015.

[33]   Gaetano Iorio Fiorelli, ‘Italy withdraws from Energy Charter Treaty’, Global Arbitration Review, 6 May 2015; Lorenzo Parola, Francesca Petronio and Fabio Cozzi, ‘Italy Withdraws from Energy Charter Treaty: What Next?’, Law360, 30 April 2015.

[34]   Parola, supra note 34.

[35]   One procedural issue deserves mentioning. Spain, the Czech Republic and Italy have opted for the exception under Article 26(3)(b)(i) of the ECT, refusing their consent to international arbitration where the investor has previously submitted the dispute to the host state’s courts or administrative tribunals, or to any previously agreed dispute-settlement procedure. See ECT Annex ID. This ECT exception is known as the ‘fork in the road’. Arbitral tribunals, however, usually take a narrow view of this provision, strictly applying the so-called ‘triple identity test’. Under this test, the fork-in-the-road provision is triggered only where there is continuity in the identity of the parties, cause of action and object of the dispute. See, e.g., Hulley Enterprise Ltd. (Cyprus) v. Russian Federation – PCA Case No. AA 226,Award, 18 July 2014. Indeed, the Charanne tribunal rejected Spain’s fork-in-the-road objection that was based on a prior unsuccessful challenges to the 2010 regulatory change brought before the Spanish Supreme Court and the European Court of Human Rights (ECtHR). The tribunal held that, ‘even under a flexible interpretation of the triple identity test,’ Spain failed to demonstrate ‘a substantial identity’ between the arbitration claimants and the prior challengers through evidence that claimants controlled the challengers’ decision-making or that the corporate structure was designed to evade the ECT’s fork-in-the-road prohibition. Charanne, supra note 16, paras. 405-08. The tribunal also noted that proceedings before the ECtHR fall outside the scope of ECT’s Article 26.

[36]   In addition, the ECT contains an ‘umbrella clause’, which requires a host state to ‘observe any obligations it has entered into with an Investor or an Investment of an Investor’. ECT Article 10(1).The clause serves to bring any contractual agreements between the investor and the state under the ‘umbrella’ of the ECT, thus making contractual rights enforceable under the treaty. Depending on the specific agreement between the investor and the host state, this clause may form the basis for additional claims. See A. Reuter, ‘Retroactive Reduction of Support for Renewable Energy and Investment Treaty Protection from the Perspective of Shareholders and Lenders’, 12 Transnat’l Disp. Mgmt., May 2015, at 42.

[37]   See C.F. Dugan, D. Wallace Jr., N.D. Rubins, B. Sabahi, Investor-State Arbitration 502 (2008).

[38]   See, e.g., R. Dolzer, ‘Fair and Equitable Treatment: Today’s Contours’, 12 Santa Clara J. Int’l L. 7, (2014); P. Dumberry, ‘The Protection of Investors’ Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105’, 31 J. Int’l Arb., 47- 73 (2014); C. Schreuer, ‘The Fair and Equitable Treatment in Arbitral Practice’, 6 J. World Inv. and Trade 3 (June 2005); C. Schreuer, ‘Fair and Equitable Treatment (FET): Interactions with Other Standards’, in G. Coop & C. Ribeiro, Investment Protection and the Energy Charter Treaty, 66 and ff (2008).

[39]   See, e.g., Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Kazakhstan, ICSID Case No. ARB/05/16; see generally Dolzer, supra note 39, at 17-19.

[40]   See Dugan, supra note 38, at 513.

[41]   See Tecnicas Medioambientales Tecmed S.A. v. Mexico, ICSID Case No. ARB (AF)/00/2.

[42]   CMS Gas Transmission Company v. Argentina, ICSID Case No. ARB/01/8; see also Dugan, supra note 38, at 516 (discussing the CMS tribunal’s analysis of the FET requirement); Occidental Exploration & Production Co. v. Ecuador, LCIA Case No. UN3467, Final Award, 1 July 2004 (concluding that an unforeseen change in the interpretation of existing laws constituted a breach of the FET standard).

[43]   See EDF (Services) Ltd. v. Romania, ICSID Case No. ARB05/13, Award (noting that otherwise investors could ‘rely on a bilateral investment treaty as a kind of insurance policy against the risk of any changes in the host State’s legal and economic framework’).

[44]   See, e.g., Saluka Investments B.V. v. Czech Republic, Permanent Court of Arbitration, Partial Award, 17 March 2006; see also Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award,11 September 2007; BG Group plc v. Argentina, Final Award, 24 December 2007; Plama Consortium Ltd. v. Bulgaria, ICSID Case No. ARB/03/24,Award, 27 Aug 2008; Continental Casualty Co. v. Argentina, ICSID Case No. ARB/03/9, Award, 5 September 2008; El Paso Energy International Co. v. Argentina, ICSID Case No. ARB/03/15, Award, 31 October 2011.

[45]   Arbitral tribunals applying Article 1105 of NAFTA have generally followed this approach, inquiring whether the expectation is reasonable and justifiable by considering the representations (or conduct) of the host state, whether the investor actually relied on those representations, and whether the state failed to respect the expectations created. At times, as in the Glamis case, the tribunals applied even stricter requirements, demanding that the investor’s expectations be based on definitive, unambiguous and repeated specific commitments or assurances by the host state that ‘purposely and specifically induced the investment.’ See P. Dumberry, supra note 39, at 43-47 (discussing Glamis Gold Ltd. v. United States, UNCITRAL, Award, 8 June 2009).

[46]   See Total S.A. v. Argentina, ICSID Case No. ARB/04/1, Decision on Liability, 27 December 2010.

[47]   Id. paras. 310–12; A. Reuter, supra note 37, at 24.

[48]   See Reuter, supra note 37, at 24 and 30.

[49]   Charanne, supra note 16, para. 499.

[50]   Id. paras. 497, 504-08. Arbitrator Tawil dissented on this point, viewing Spain’s commitments as sufficiently specific and aimed at a limited number of potential investors to create an objective legitimate expectation on the part of those investors that the regulatory regime would not be altered without adequate compensation. Id., Dissenting Opinion of Prof. Guido Santiago Tawil, paras. 5-12.

[51]   Id. paras. 545-46.

[52]   The analysis of the legitimacy of investors’ expectations may also be influenced by such issues as the impact, if any, of the EU rules on state aid, which may require the EU member state to terminate or adjust its renewable energy incentive regime. See Reuter, supra note 37, at 31-41; infra text under ‘The European Commission’s role in ECT renewable energy arbitrations’; see also Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.75; El Paso Energy Int’l Co. v. Argentina, ICSID Case No. ARB 03/15, Award, 31 October 2011, para. 348.

[53]   Nykomb Synergetics Technology Holding AB (Sweden) v. Latvia, SCC - Case No. 118/2001, Arbitral Award, 16 December 2003.

[54]   Id. para. 1.2.

[55]   Id. para. 4.3.1.

[56]   Id. para. 4.3.1. The Nykomb decision has been questioned as adopting an unwarrantedly narrow view of indirect expropriation and failing to consider the economic effects of the government’s actions. See R.A. Nathanson, ‘The Revocation of Clean-Energy Investment Economic-Support Systems as Indirect Expropriation Post-Nykomb: A Spanish Case Analysis’, 98 Iowa L. Rev. 863,888-89, 899-901 (2013). Indeed, tribunals that addressed investors’ claims under NAFTA and BITs found indirect expropriation where ‘measures are taken by a State the effect of which is to deprive the investor of the use and benefit of his investment even though he may retain nominal ownership of the respective rights being the investment’. Middle East Cement Shipping & Handling Co. S.A. v. Egypt, ICSID Case No. ARB/99/6, Award, 12 April 2002. These tribunals considered whether the host state measures were proportional to the public interest, see Tecnicas Medioambientales Tecmed S.A. v. Mexico, ICSID Case No. Arb (AF)/00/2, Award, 29 May 2003, and whether the host state acted in the normal exercise of its regulatory powers in a non-discriminatory manner, see Saluka Investments B.V. v. Czech Republic, Permanent Court of Arbitration, Partial Award, 17 March 2006.

[57]   Charanne, supra note 16, para. 461 (citing arbitral decisions).

[58]   Id. paras. 462-65.

[59]   See, e.g., Eiser Infrastructure Ltd. and Energía Solar Luxembourg S.à r.l. v. Spain, ICSID Case No. ARB/13/36; Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1; NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ARB/14/11; InfraRed Environmental Infrastructure GP Ltd., et al. v. Spain, ICSID Case No. ARB/14/12; RENERGY S.à r.l. v. Spain, ICSID Case No. ARB/14/18.

[60]   Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012; see also Carlos Gonzalez-Bueno & Laura Lozano, ‘More than a Friend of the Court: The Evolving Role of the European Commission in Investor-State Arbitration’, KluwerArbitrationBlog.com (16 January 2015).

[61]   Charanne, supra note 16, para. 425.

[62]   See Gonzalez-Bueno & Lozano, supra note 61; Luke Eric Peterson, ‘European Commission Wades into Solar Arbitrations Against Spain, Intervening in One Case a Week Before Final Hearings’, Inv. Arb. Rep., 17 November 2014; RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.á.r.l. v. Kingdom of Spain (ICSID Case No. ARB/13/30), paras. 31-32.

[63]   Luke Eric Peterson, European Commission, supra note 63; Luke Eric Peterson, ‘Investigation: In Recent Briefs, European Commission Casts Doubt on Application of Energy Charter Treaty to Any Intra-EU Dispute’, Inv. Arb. Rep., 8 September 2014.

[64]   Id.; see also Talus, supra note 3, at 10-13.

[65]   Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, supra note 61, at IV-27. The EC did not make this argument in the Charanne arbitration, possibly because the EC’s review of whether Spain’s original incentive regime for renewable energy complied with the state aid rules was still pending. Charanne, supra note 16, paras. 448-49.

[66]   Luke Eric Peterson, Investigation: In Recent Briefs, supra note 64.

[67]   Charanne, supra note 16, para. 429.

[68]   Id. para. 431.

[69]   Id.

[70]   See Statement submitted by the European Communities to the Secretariat of the Energy Charter pursuant to Art. 26(3)(b)(ii) of the Energy Charter Treaty, 1998 O.J. (L 69) (115); see also Markus Burgstaller, ‘European Law and Investment Treaties’, 26 J. Int’l Arb. 208-09 (2009).

[71]   Burgstaller, supra note 71, at 208.

[72]   Id. at 209.

[73]   Id. at 209-10.

[74]   Charanne, supra note 16, paras. 433-39.

Practical insight from experts on the ground