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

The renewable energy sector often depends on large, up-front 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 (FITs) 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 during 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 (FET).

In addition to the protection that bilateral investment treaties (BITs) and investment chapters of free trade agreements offer to foreign investors, an important response to investors’ desire for assurances of stability is the Energy Charter Treaty (ECT).[2] 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.

There has been a significantly increased level of investment during the past decade or so, including foreign investment, as a result of international initiatives designed to spawn the development of alternative energy sources.[3] Many countries have implemented government subsidies and support schemes to encourage investment in the renewable energy sector. These measures were designed to favour renewable resources over continued use of fossil fuels and to account for the significant up-front expense associated with the new technologies.[4]

Pending renewable energy arbitrations under the ECT

The favourable subsidies and support schemes that many European countries implemented in the early and mid 2000s resulted in significant investment in renewable energy development. Faced with a global financial crisis in 2008–2009, however, many of these countries scaled back or eliminated altogether their original investment incentive frameworks. At times, these changes resulted from those countries’ obligations under EU law.

These regulatory changes and the resulting effects on foreign investors’ investments, in turn, have sparked a considerable number of legal disputes, including a number of investor-state arbitrations under the ECT. Spain, the Czech Republic and Italy, in particular, have faced numerous international arbitrations brought by aggrieved investors following changes in those countries’ regulatory structures for renewable energy investment.[5] The investors’ arbitration claims brought under the ECT largely have focused on two protections and grounds for relief: (1) the requirement that the host state extend FET to foreign investors; and (2) the prohibition on expropriation.

Spain

For more than a decade, Spain had laws subsidising new investments in wind energy, solar (photovoltaic) 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 foreign investors.[6] 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.[7] One incentive Spain offered was a FIT, which permitted owners of renewable energy plants (particularly concentrated solar power (CSP) plants) to sell electricity at a higher rate for the first 25 years and at a reduced rate for the plant’s remaining lifetime.[8]

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 FITs and those collected from access tariffs set on the open market – because revenue from the state-subsidised prices failed to cover costs.[9] By 2012, Spain had largely eliminated these incentives for new solar facilities.[10] The government also issued decrees imposing a tax on power generation.[11]

In response to these regulatory changes and the potential financial effect on the newly developed projects, numerous investors brought arbitration claims under the ECT. As at August 2020, foreign investors had filed more than 30 arbitration claims against Spain at the International Centre for Settlement of Industrial Disputes (ICSID),[12] with other cases pending before tribunals constituted under the rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Stockholm Chamber of Commerce (SCC).[13]

In one of the longest-pending renewable energy arbitrations, the PV Investors case (filed in 2011), Spain allowed the claims made by investors in the photovoltaic sector to be determined by a single UNCITRAL arbitral tribunal.[14] In 2014, that tribunal affirmed that it had jurisdiction over the claims that Spain breached its obligations under the ECT – the first jurisdictional ruling in any of the renewable energy arbitrations brought against Spain.[15]

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

In February 2020, the PV Investors tribunal reached a different result when it issued a final award in favour of the claimants.[19] The tribunal found that although the claimant investors did not possess any legitimate expectations that their investments would be protected by an immutable regulatory framework, the investors did have legitimate expectations to receive a ‘reasonable return’ on their investment, which the Spanish government had violated.[20] Using a detailed economic assessment to determine the effect of the Spanish government’s regulatory changes on the claimants’ investments based on the expected life cycle of the claimants’ investment, the tribunal awarded the claimants €90 million.[21]

A split ICSID tribunal in RREEF Infrastructure rendered a similar award in November 2018 with respect to Spain’s 2013 regulatory regime change. That tribunal found that Spain had not acted discriminatorily or dishonestly in enacting its policy amendments, but that the government had breached its stability obligation encompassed under the ECT’s FET requirement and therefore awarded the claimant investors €59.6 million in reasonable and equitable compensation.[22]

Spain’s 2013 regulatory changes have been at issue in a number of other arbitration proceedings as well. Most of these arbitrations have resulted in victories for the claimants, which Spain has subsequently sought to annul. For example, in May 2017, the ICSID tribunal in the Eiser arbitration rendered a unanimous award finding that Spain had failed to accord FET to the claimant investors and awarded them €128 million.[23] The same result followed in the Novenergia arbitration, in which an SCC tribunal, in February 2018, also found that Spain violated the ECT’s guarantee of FET.[24] In May 2019, an ICSID tribunal in 9REN Holding came to a similar conclusion in awarding the claimant investors €41.76 million plus interest, after the tribunal determined that Spain’s regulatory reforms were neither fair nor equitable and that the new regime was, instead, ‘fundamentally different from the framework that Spain promised and that induced the Claimant to invest’.[25] Likewise, in January 2020, a split ICSID tribunal awarded €77 million to the claimants in the Watkins Holding arbitration, after the tribunal concluded that Spain’s regulatory amendments frustrated Watkins’ legitimate and reasonable expectations.[26] Spain was also found liable for €64.5 million in damages in the Masdar ICSID arbitration,[27] €112 million in damages in the Antin ICSID arbitration,[28] €290.6 million in the NextEra ICSID arbitration,[29] €40 million in the SolEs Badajoz arbitration,[30] €29.3 million in the OperaFund Eco-Invest arbitration,[31] €33 million in the Cube Infrastructure arbitration,[32] and €28.2 million in the Infrared arbitration. Most recently, on 31 August 2020, a divided ICSID tribunal in Cavalum v. Spain continued the pro-claimant trend in renewable energy arbitrations under the ECT, ruling in favour of a Portuguese investor and finding that Spain’s renewable energy subsidy reforms violated that investor’s legitimate expectations of a reasonable return on its investment.[33]

Spain has prevailed, however, in a limited number of ECT renewable energy arbitrations. For example, in Isolux,[34] the tribunal found that the foreign investor, having begun to invest after the 2010 reforms, could not have had any legitimate expectation that further reforms would end, and therefore found that there was no violation of FET.[35] Likewise, in the Stadtwerke München arbitration, on 2 December 2019, a split ICSID tribunal rejected claims by a group of German investors in several CSP plants, holding that Spain did not breach the claimants’ legitimate expectations in amending its FITs in 2013.[36]

Czech Republic

In 2005, the Czech Republic introduced a FIT for solar-generated electricity sold directly to electrical grid operators, and guaranteed 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 FIT, and in 2010 imposed a retroactive levy on revenues from solar electricity, which was upheld by the Czech Constitutional Court.[37] The Czech government then passed legislation authorising faster reductions in the tariff rate.[38]

Foreign investors in the Czech photovoltaic power sector commenced several arbitration proceedings, arguing that the regulatory changes to the FIT violated the ECT and various intra-EU BITs, and thereby breached investors’ legitimate expectations. In the first of these disputes, in May 2013, a group of 10 German, UK and Cypriot investors, led by Antaris Solar GmbH, commenced an UNCITRAL arbitration under the ECT and the relevant BITs seeking damages of between €50 million and €70 million.[39] Because the Czech Republic objected to a consolidated proceeding, the arbitration continued before six different tribunals, albeit with some overlap among the respective arbitrators.[40]

As of August 2020, in addition to the Antaris Solar dispute, six other solar-related arbitrations have been filed against the Czech Republic.[41] For example, JSW Solar, a German company, commenced an UNCITRAL arbitration in the latter half of 2013 but alleged only violations of the Germany–Czech Republic BIT, and eschewed invoking the ECT, possibly because Article 21 of the ECT limits claims relating to taxation measures, such as the Czech government’s retroactive levy.[42] In October 2017, a divided UNCITRAL tribunal ruled in favour of the Czech Republic, finding that the country’s measures introduced in 2011 did not violate legitimate expectations and were reasonable, proportionate, and non-arbitrary.[43] In May 2018 and May 2019, the Czech Republic also prevailed in five other arbitrations, four of which were decided by the same tribunal.[44]

By contrast, the Natland tribunal, in a 2017 partial award on jurisdiction and liability, found that the Czech Republic breached the ECT’s FET standard.[45] The Czech Republic subsequently sought to set aside the award in the Swiss courts, characterising it as a non-decisive interim ruling with mixed findings on jurisdiction and the merits.[46] In February 2020, the Swiss Federal Supreme Court rejected the Czech Republic’s application to set aside the award on both jurisdictional and merits grounds.[47] The Court first rejected the Czech Republic’s contention that its solar levy qualified as a tax that fell within the ECT’s jurisdictional exception. On the merits, the Court also agreed with the arbitral tribunal that the retroactive levy breached the ECT’s FET standard, as well as BITs with Cyprus and the Netherlands.[48] Although the Czech Republic had announced initial changes to its renewable energy regulatory regime in 2009, the Court determined that there was no indication that these changes would apply to existing investments, such as those belonging to claimants.[49]

Italy

A FIT 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.[50] The FIT contributed to a significant growth of the Italian renewable energy sector, and the photovoltaic market in particular.

This incentive system was costly, however, and eventually became unaffordable: the three-year €6.7 billion scheme approved in June 2012 was completely exhausted by July 2013.[51] That same year, Italy ceased to grant incentives to new plants. Moreover, in 2014, the Italian government adopted the ‘spalma incentive’ (incentive spreading) decree, which retroactively mandated a reduction in the FIT 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 between 6 per cent and 8 per cent (depending on a plant’s peak power) for the remainder of the duration of the incentives.[52]

On 7 December 2016, the Italian Constitutional Court upheld the government’s changes to the incentive regime. The Court rejected investors’ arguments that the 2014 decree arbitrarily and unreasonably interfered with existing long-term contracts, in a breach of the claimants’ legitimate expectations.[53]

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 of these arbitrations began in 2014. Since then, at least seven arbitrations have been filed against Italy at ICSID,[54] with multiple other cases pending before the SCC.[55] In December 2016, the first award in these arbitrations – the Blusun ICSID arbitration – rejected the investor’s claim against Italy.[56] The tribunal concluded that Italy did not violate the guarantee of FET or commit an indirect expropriation because it did not promise investors that its regulatory framework would remain unchanged, nor did it modify that framework in discriminatory ways.[57] Likewise, the SCC tribunal in the Sun Reserve Luxco Holdings arbitration determined that Italy did not violate the ECT’s FET standard – which the tribunal noted was higher than that imposed under international law – because the investors failed to demonstrate that they possessed a legitimate set of expectations that protected their investments against subsequent changes in the regulatory regime.[58] By contrast, the SCC tribunal in the Greentech Energy arbitration issued a divided decision in December 2018, in which the majority found that Italy violate the ECT’s FET standard and awarded damages to the investors.[59]

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 decision to withdraw.[60] 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 another 20 years.[61]

Key legal issues in 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 FET, constant protection and security, non-discrimination, most-favoured nation, fulfilment of commitments, prohibition against expropriation and compensation for losses.[62] Several key legal issues recurrently arise in these renewable energy arbitrations – these centre on whether the regulatory and legislative changes to the renewable energy incentive regimes (1) breached the ECT’s guarantee of FET or (2) constituted an indirect expropriation (or both).[63]

FET and investors’ reasonable expectations

Article 10(1) of the ECT contains the FET requirement, which is one of the most frequent bases that claimants assert in investor-state disputes. Under Article 10(1), each ECT signatory promises 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 requirement is ‘one of the most actively debated concepts in investment protection law’,[64] and arbitral tribunals and commentators have offered varied constructions of its requirements.[65] The FET requirement is part of most BITs and multilateral agreements (such as the North American Free Trade Agreement (NAFTA)),[66] and is regularly addressed in investor-state arbitrations.

The FET standard frequently 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.[67]

The analysis of whether the FET standard has been violated focuses on whether the host state acted with consistency, transparency and reasonableness in modifying (or eliminating) an 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 test as to when investors’ expectations deserve treaty protection under the FET requirement, and any evaluation regarding the degree of protection and the appropriate remedy heavily depends on the particular facts.

There are two acknowledged approaches to determining when investor expectations are sufficiently ‘legitimate and 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’.[68] 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’.[69] The tribunal in CMS v. Argentina – an early and 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 FET.[70] The RREEF Infrastructure tribunal confirmed that the stability commitment is a separately enforceable obligation, but one that does not require ‘immutability’. Rather, ‘the obligation to create a stable environment’ merely excludes ‘unpredictable radical transformation’.[71]

The FET analysis balances numerous legal, economic and political considerations. This includes, but is not limited to, the host state’s inherent right to regulate, which may involve changing or eliminating 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’.[72] The tribunal in PV Investors v. Spain likewise acknowledged that protecting investors’ legitimate expectations requires balancing states’ sovereign rights over energy regulation and stressed that even if others would disagree with a state’s decision, those states ‘enjoy a margin of appreciation in the field of economic regulation’.[73] Accordingly, in rejecting claims based on an alleged breach of FET, arbitral tribunals have emphasised that ‘[n]o 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’.[74] The tribunal in OperaFund Eco-Invest likewise highlighted that the FET standard protects investors from modifications that alter the ‘essential characteristics’ of the legislative scheme.[75] Thus, although a state may make regulatory changes, it cannot expressly change ‘the rules of the game it issued itself’.[76]

An international arbitral tribunal is more likely to find a breach of the FET requirement where the host state, implicitly or explicitly, makes very specific representations, commitments, assurances or promises on which the foreign investor relies in making the investment.[77] Absent a specific commitment from the host state, an investor faces a steeper burden, especially when relying on ‘legislation or regulation of a unilateral and general character’.[78] 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.[79] Unlike the France–Argentina BIT, which was at issue in Total, Article 10(1) of the ECT expressly references the host state’s duty to create ‘stable’ and ‘transparent’ conditions for foreign investments, as well as a ‘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.[80]

The SCC tribunal in Sun Reserve Luxco Holdings SRL v. Italy observed that the threshold for finding a violation of the FET standard ‘must be such as to shock judicial propriety’.[81] According to the Sun Reserve tribunal, the FET analysis should focus on the level of certainty at the time of the investment (or at each ‘decisive step’ towards furthering an investment), and legitimate expectations should be ‘objectively knowable and certain, and not based on subjective hopes or beliefs’.[82] Further, although the FET standard includes a duty to act transparently, consistently and in good faith, those are lower thresholds to meet, and according to some tribunals may be violated only by ‘willfulness or intention on the part of the host State’.[83] As the Sun Reserve tribunal summarised:

To constitute a breach of the FET standard, it must be shown that the host State’s conduct was manifestly or grossly unfair or unreasonable, was arbitrary or discriminatory, constituted a denial of justice in national proceedings in the host State, or that the host State engaged in a wilful neglect of duty or a wilful disregard of due process of law, or showed an extreme insufficiency of action falling far below international standards.[84]

Recent international awards in the renewable energy sector confirm that changes in the host state’s regulatory framework will not necessarily lead to a finding of a breach of the FET standard. For example, 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’.[85] 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.[86] 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.[87]

Similarly, a split ICSID tribunal in Stadtwerke München GmbH v. Spain rejected the claimants’ contention that the Spanish government created the expectation that its FITs would be maintained through the lifespan of the plant’s construction, stating that ‘a prudent investor would not have reasonably formed an expectation of a legally stable income stream for the life of the . . . Plant’.[88] The same analysis led the Blusun tribunal to reject a claim of FET violation by Italy. That tribunal observed that Italy had made ‘no special commitment’ to the investors with respect to the extension and operation of FITs, ‘nor did it specifically undertake that relevant Italian laws would remain unchanged’.[89] The tribunal also pointed out that the investors did not establish ‘that the Italian state’s measures were the operative cause of the . . . [p]roject’s failure’.[90]

In examining the ECT’s guarantee of FET, other tribunals have arrived at a different conclusion when assessing whether investors had legitimate expectations in the immutability of the state’s original incentive regime. For example, nearly a dozen tribunals have already concluded that Spain failed to comply with its obligation to create stable, favourable and transparent conditions for foreign investors when it amended its regulatory incentive framework for solar power investments beginning in 2013.[91] Notably, however, not all these tribunals found that the investors had legitimate expectations that the existing investment regime would remain completely unchanged.[92] Rather, these tribunals appear to have based their decisions to compensate investors for their legitimate expectations on the reasonableness of those expectations, the investors’ due diligence, the specificity of the state’s commitments regarding the investment and the foreseeability that the existing regime may be altered.[93]

Indirect expropriation

Another basis for protection that claimants historically have invoked in renewable energy arbitrations is expropriation – and indirect expropriation in particular. Although the ECT does not have a specific provision addressing indirect expropriation, 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’. These claims, too, are highly fact intensive, but are rejected by arbitral tribunals barring some highly unusual set of circumstances.

In Nykomb v. Latvia, the tribunal addressed claims of indirect expropriation under the ECT, and construed that expropriation narrowly.[94] In that arbitration, 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, however, Latvia revoked this favourable treatment and retroactively introduced a significantly lower tariff.[95] 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’.[96] The arbitral tribunal disagreed, concluding that the loss of the economic value of the investment did not, by itself, constitute an expropriation because the state did not take possession of the enterprise or its assets, or interfere with the shareholders’ rights or management control.[97]

The Charanne tribunal likewise rejected the investors’ argument that Spain’s modification of the incentive regime constituted an indirect expropriation because it affected their returns on the investment. Adopting the standard articulated in such decisions as CMS and Electrabel (and others in arbitrations brought under NAFTA or BITs), the Charanne tribunal explained 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’.[98] The tribunal observed, however, 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.[99]

Although the Charanne tribunal rejected the expropriation claim, it adopted a broader definition of indirect expropriation applied by tribunals that addressed investors’ claims under NAFTA and BITs, rather than the more narrow definition of Nykomb. It remains to be seen, therefore, what approach other arbitral tribunals will adopt when determining whether the reductions of a FIT 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, these decisions are likely to 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 its legal framework and pursue new policies.

This analysis can lead arbitrators to different conclusions, as illustrated by the duelling majority and dissenting opinions in the Blusun arbitration. There, the tribunal majority rejected the claim of indirect expropriation on the basis that Italy had enacted ‘non-discriminatory laws ostensibly passed in the public interest’ and, therefore, was not required to ‘pick up the tab for Blusun’s failures’.[100] The dissenting arbitrator, however, would have found that the investor could not have expected Italy to impose a restriction on the use of the agricultural land, which the investor purchased at a premium specifically expecting to construct solar plants, and, therefore, should have been compensated for the lost incremental value of the land.[101]

In recently decided renewable energy arbitrations, especially those against Spain, indirect expropriation has played a subordinate or non-existent role in resolving those disputes. The lower standard for establishing liability under the FET standard has either (1) caused claimant investors to refrain from raising indirect expropriation claims, or (2) rendered the tribunal’s review and analysis of indirect expropriation issues moot.[102]

Role of the European Commission

ECT renewable energy arbitrations and jurisdictional considerations

Another significant issue in renewable energy arbitrations under the ECT is the European Commission’s participation as amicus curiae.[103] 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 and jurisdictional objections based on intra-EU investment treaty considerations.

The Commission’s first involvement as amicus curiae in an ECT arbitration came in Electrabel, in which the tribunal permitted the Commission to describe the relationship between EU law and the ECT.[104] 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’.[105] Since Charanne, the Commission has sought to submit amicus briefs in certain of the pending renewable energy arbitrations against 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).[106] The Commission similarly has sought to participate in some of the Czech renewable energy arbitrations.[107]

The Commission’s involvement in these arbitrations implicates two substantive issues. The first involves a possible defence by the host state against investors’ claims based on EU rules on state aid. For example, in the disputes against the Czech Republic, the Commission has reportedly taken the position that some of the original solar investment incentives the Czech Republic offered to investors contravened EU law and, therefore, were required to be repealed.[108] In Electrabel, the Commission argued that Hungary did not breach its treaty obligations because the changes to Hungary’s regulatory regime were created to comply with EU law.[109]

The second issue is whether, given the Commission’s position that the ECT does not apply to intra-EU disputes, the Treaty permits arbitration between EU-based investors and EU Member States.[110] The Charanne tribunal, for instance, rejected the Commission’s (and Spain’s) argument that the European Union’s status as a signatory of the ECT destroyed the diversity-of-nationality requirement under Article 26. The tribunal stressed that the European Union’s status as a party to the ECT does not mean that EU Member States ‘ceased to be’ parties to the ECT as well.[111] 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 European Union.[112] Adopting a similar rationale, the tribunal in Eskosol S.p.A. in Liquidazione v. Italy ruled that, through Article 26(3) of the ECT, contracting states unconditionally agreed to arbitrate without any qualifications for intra-EU disputes.[113] Therefore, even if the European Union is deemed a separate contracting party to the ECT, so too are the individual Member States, each of which possesses independent obligations to arbitrate under the ECT.[114]

In the Czech renewable energy arbitrations, the European Commission reportedly argued that, although the ECT does not contain an explicit ‘disconnection’ clause that would render it inapplicable in intra-EU disputes, that restriction should be inferred from the Treaty’s context, purpose and drafting history.[115] In 1998, in a statement submitted to the Secretariat of the Energy Charter, the Commission invoked Article 26(3)(b)(ii) of the ECT (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.[116] 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.[117]

A critical intervening development affecting the potential jurisdictional landscape of renewable energy arbitrations in Europe was the European Court of Justice’s (ECJ) decision in Slovak Republic v. Achmea.[118] Issued in March 2018, that decision held that the investor-state arbitration mechanism in a BIT between the Netherlands and Slovakia, both EU Member States, was incompatible with EU law. In the aftermath of that decision, 22 EU Member States issued a declaration in January 2019 stating that the Achmea decision applies more broadly to intra-EU investor-state cases brought under the ECT.[119] However, five other EU Member States issued a separate declaration, observing that the ECJ’s decision was silent on the matter.[120]

Unsurprisingly, respondent states in renewable energy arbitrations have sought to invoke Achmea as a means of challenging jurisdiction and dismissing the proceedings. These efforts have been successful, largely, with a number of tribunals ruling that, notwithstanding the Achmea decision, EU law does not divest the arbitral tribunals of jurisdiction over intra-EU disputes brought under the ECT.[121] For example, in Eskosol S.p.A. in Liquidazione v. Italy, the tribunal ruled that the Achmea judgment does not reach the ECT because (1) Achmea only refers to bilateral treaties between EU Member States, not the ECT, (2) the language in the Achmea decision suggests an intent not to address a situation in which the European Union is a contracting party, (3) the ECJ emphasised that Achmea only applied to disputes requiring application of EU law, and (4) the tribunal was composed of a different legal order (general international law and not EU law).[122] The Eskosol tribunal also found that Italy’s declaration regarding the application of Achmea was neither binding nor appropriate for the purposes of treaty interpretation because, inter alia, it was not made ‘in connection with the conclusion of’ the ECT and was not signed onto by all ECT Member States.[123]

Although the Achmea judgment has thus far not materially affected the progress and resolution of renewable energy arbitrations brought under the ECT, tribunals and national courts alike are keenly aware that the ECJ may, at some point, address directly whether EU nationals remain eligible to bring claims under the ECT against EU Member States. Any such decision is likely to affect both the tribunal’s jurisdiction to hear disputes under the ECT and subsequent enforcement of awards in EU Member States. Some Swedish courts, for example, have stayed the enforcement of SCC decisions while they consider whether to consult the ECJ on the scope of Achmea and the ECT’s compatibility with EU law.[124] The Eskosol tribunal also expressly recognised the looming enforcement uncertainty associated with the future interpretation and application of Achmea:

The CJEU has not yet clarified whether it considers the reasoning in that [Achmea] Judgment to be applicable to the ECT, as a matter of EU law. If the CJEU ultimately finds the ECT distinguishable from the intra-EU BIT that it discussed in the Achmea Judgment – for example, because an ECT tribunal does not apply EU law to resolve the dispute, as this Tribunal has found in interpreting ECT Article 26(6) – then ultimately no enforcement issue may arise even within Europe. Nonetheless, the Tribunal accepts that if the Achmea Judgment ultimately is determined to be applicable to the ECT, a court subject to the EU legal order could eventually question the enforceability under EU law of an ECT award rendered in an intra-EU case.[125]

The current negotiations among EU Member States, as well as among ECT signatories, may also affect arbitral tribunals’ jurisdiction over intra-EU disputes brought under the ECT. On 5 May 2020, 23 EU Member States signed an agreement terminating BITs between EU Member States.[126] That agreement, however, expressly states that it ‘does not cover intra-EU proceedings on the basis of Article 26 of the Energy Charter Treaty’ and that ‘[t]he European Union and its Member States will deal with this matter at a later stage’.[127] On 6 November 2019, the Energy Charter Conference established a Modernisation Group to start negotiations on the modernisation of the ECT.[128] Those negotiations may provide another forum for addressing the intra-EU application of the Treaty.[129]

Conclusion

Because international arbitral tribunals tasked with adjudicating renewable energy investment disputes under the ECT historically began with little direct precedent to examine, they understandably sought guidance in decisions rendered in other investor-state investment disputes. The Charanne decision – the first award rendered in these renewable energy arbitrations – appropriately relied on the general principles of FET and the general prohibition against indirect expropriation defined by previous international arbitral tribunals. Since then, tribunals have increasingly focused on the contours and application of the FET standard to determine whether claimant investors should be properly compensated, based on subsequent regulatory changes implemented by host states. As increasing numbers of renewable energy disputes progress through the system and reach a final award, those awards, including the tribunals’ underlying analysis of these renewable energy investments, will continue to define the parameters of the host states’ regulatory powers with respect to renewable energy investments, as well as the intersection of the ECT with EU law. Inevitably, these final awards have spawned a wave of annulment applications from unsuccessful parties seeking to undermine and undo the tribunals’ decisions, and with them, a host of additional issues that will require further monitoring and evaluation.


Notes

[1] Igor V Timofeyev and Joseph R Profaizer are partners and Adam J Weiss is a senior associate at Paul Hastings LLP. The authors are grateful to Brenda Freed, senior paralegal at Paul Hastings LLP, and Nafeesah Attah, Scotty Schenck and Jay Schuffenhauer, Paul Hastings summer associates (2020), for their valuable assistance in the research and preparation of this chapter.

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

[3] 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 Kim Talus, ‘Introduction: Renewable Energy Disputes in Europe and Beyond: An Overview of Current Cases’, 12 Transnat’l Disp. Mgmt, May 2015, at 3 to 4.

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

[5] Since 2013, after Bulgaria imposed a 20 per cent tax on the sale of solar and wind power as well as a retroactive reduction in feed-in tariffs [FITs] in those sectors, Bulgaria has faced four arbitration claims ‘similar to those seen . . . against Spain, Italy and the Czech Republic’. See ‘Bulgaria Faces its First Known Arbitration Claim from a Foreign Investor in Renewable Energy Generation Section’, Inv. Arb. Rep., 14 February 2018; see also Jarrod Hepburn, ‘Bulgaria May Face BIT and Human Rights Claims Over Renewable Energy Measures’, Inv. Arb. Rep., 4 June 2014. One of these arbitrations has resulted in a final award. On 10 April 2019, a split ICSID tribunal issued an award in EVN v. Bulgaria, which was initiated by two Austrian investors over the Bulgarian renewable energy regulatory changes. The award is not public, but it was a victory for Bulgaria. See Damien Charlotin, ‘Tribunal Members Diverge in Final Ruling in Intra-EU ECT Arbitration Against Bulgaria’, Inv. Arb. Rep., 11 April 2019. In April 2020, the parties in another arbitration, ENERGO-PRO v. Bulgaria, ICSID/15/19 – an ICSID proceeding initiated in 2015 by a Czech energy company that owns hydroelectric plants, distribution and supply companies in Bulgaria – filed cost submissions following the merits phase of the proceeding. As at August 2020, the final award remained pending. Vladislav Djanic, ‘Balkans Round-Up: An Update on Disputes Against Albania, Bosnia, Greece, North Macedonia and Romania’, Inv. Arb. Rep., 15 May 2020.

In addition, since 2013, Romania has defended against three renewable energy arbitration claims. The first, EDF (Services) Ltd. v. Romania, ICSID Case No. ARB05/13, resulted in a favourable award for Romania. The other two arbitrations – LSG Building Solutions v. Romania, ICSID Case No. ARB/18/19 (commenced in 2018) and Wind Project v. Romania (ICSID; commenced in May 2020), which both arise from changes to Romania’s incentive scheme for renewable energy investments – remain pending. See Zoe Williams, ‘Romania is Hit with a New Energy Charter Treaty Claim’, Inv. Arb. Rep., 13 June 2018; IAReporter, ‘Wind Farm Investor Initiates ECT Arbitration Against Romania’, Inv. Arb. Rep., 19 May 2020.

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

[7] id.

[8] See Juan M Tirado (footnote 4, above) at 5 to 6. See also Sebastian Mejia, ‘The Protection of Legitimate Expectations and Regulatory Change: The Spanish Case’, Spain Arb. Rev. 113 to 132 (2014).

[9] See Juan M Tirado (footnote 4, above) at 6 to 7.

[10] Pablo del Rio and Pere Mir-Artigues, ‘A Cautionary Tale: Spain’s Solar PV Investment Bubble’, International Institute for Sustainable Development (IISD) (February 2014); see also Juan M Tirado (footnote 4, above), at 6 to 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).

[11] Arif Hyder Ali (footnote 6, above), at 13 and n.35.

[12] See Canepa Green Energy Opportunities I, S.á r.l. and Canepa Green Energy Opportunities II, S.á r.l. v. Spain (ICSID Case No. ARB/19/4); European Solar Farms A/S v. Spain (ICSID Case No. ARB/18/45); EBL (Genossenschaft Elektra Baselland) and Tubo Sol PE2 S.L. v. Spain (ICSID Case No. ARB/18/42); Itochu Corporation v. Spain (ICSID Case No. ARB/18/25); DCM Energy GmbH & Co. Solar 1 KG and others v. Spain (ICSID Case No. ARB/17/41); Portigon AG v. Spain (ICSID Case No. ARB/17/15); Sevilla Beheer B.V. and others v. Spain (ICSID Case No. ARB/16/27); Infracapital F1 S.à r.l. and Infracapital Solar B.V. v. Spain (ICSID Case No. ARB/16/18); Sun-Flower Olmeda GmbH & Co KG and others v. Spain (ICSID Case No. ARB/16/17); Eurus Energy Holdings Corporation v. Spain (ICSID Case No. ARB/16/4); Landesbank Baden-Württemberg and others v. Spain (ICSID Case No. ARB/15/45); Watkins Holdings S.à r.l. and others v. Spain (ICSID Case No. ARB/15/44); Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v. Spain (ICSID Case No. ARB/15/42); SolEs Badajoz GmbH v. Spain (ICSID Case No. ARB/15/38); 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.à 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).

[13] See PV Investors v. Spain (UNCITRAL; commenced in 2011); Charanne and Construction Investments, et al. v. Spain (Stockholm Chamber of Commerce [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); Novenergia II – Energy & Environment (SCA) v. Spain (SCC: registered in 2015); see also Kim Talus (footnote 3, above), at 7; Juan M Tirado (footnote 4, above), at 15 to 17.

[14] 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.

[15] 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; see also PV Investors v. Spain, PCA Case No. 2012-14, Final Award, 28 February 2020, para. 543.

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

[17] id., at para. 450.

[18] id., at 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.

[19] PV Investors v. Spain, PCA Case No. 2012-14, Final Award, 28 February 2020. The Tribunal only addressed the claimants’ claim that Spain breached the fair and equitable treatment [FET] standard and declined to address the merits of the claimants’ expropriation claim. id., at para. 691 n.877.

[20] See PV Investors, Final Award, paras. 587 to 620, 638 to 640.

[21] id., at para. 909.

[22] See Lisa Bohmer, ‘A new Spain ruling surfaces, revealing that tribunal majority sees a more limited legitimate expectation: to reasonable rate of return for energy investors, but not to broader regulatory stability’, Inv. Arb. Rep., 17 March 2019; see also Lisa Bohmer, ‘In RREEF v. Spain, dissenting arbitrator Robert Volterra finds ECT [Energy Charter Treaty] breaches beyond mere failure to provide a reasonable rate of return, and criticizes majority’s support for tribunal-appointed damages expert’, Inv. Arb. Rep., 8 April 2019. In what has become a consistent pattern following unfavourable arbitration awards, on 15 April 2020, Spain applied to annul the majority’s award, although the specific grounds have not been publicly disclosed.

[23] Eiser Infrastructure Ltd and Energia Solar Luxembourg S.à r.l. v. Spain, ICSID Case No. ARB/13/36; see also Tom Jones,‘Spain Suffers Loss in Solar Power Case’, Global Arbitration Review, 5 May 2017. In June 2020, an annulment committee granted Spain’s application to annul the award on the grounds that Eiser’s party-appointed arbitrator failed to disclose a relationship with one of Eiser’s expert witnesses. On 31 July 2020, Eiser challenged the annulment, via an application for supplementary decision, arguing that the annulment decision failed to consider whether the asserted lack of disclosure actually constituted bias towards a party and materially affected the award. Emphasising that Spain has lodged arbitrator challenges in 13 of the 15 awards issued against it by ECT tribunals to date, Eiser’s application also warned that the annulment decision countenances Spain’s ‘strategy of attacking jurists’. See Jack Ballantyne, ‘Solar Investor Seeks New Ruling After Award Annulment’, Global Arbitration Review, 4 August 2020.

[24] Novenergia II – Energy & Environment (SCA) v. Spain (SCC: registered in 2015); see also Tom Jones, ‘Second loss for Spain over solar reforms’, Global Arbitration Review, 19 February 2018.

[25] Damien Charlotin, ‘Breaking: Spain ordered to pay $41.7 million in new ECT award, as tribunal of Binnie, Haigh and Veeder reject intra-EU objection and deem Spanish renewables legislation to be a specific obligation to investor; claimant 9Ren is subsidiary of US private equity fund first reserve,’ Inv. Arb. Rep., 2 June 2019; 9REN Holding S.à.r.l v. Spain, ICSID Case No.ARB/15/15, Award, 31 May 2019.

[26] See Lisa Bohmer, ‘Analysis: In Watkins v. Spain award, majority find that changes to Spain’s renewable energy incentives trigger ECT violations; dissenter says majority decision lacks clarity’, Inv. Arb. Rep., 23 January 2020; see also Watkins Holdings S.à r.l. and others v. Spain, ICSID Case No. ARB/15/44, Award, 21 January 2020, para. 744.

[27] See Tom Jones, ‘Spain Ordered To Pay After Another ECT Loss’, Global Arbitration Review, 15 November 2018. After unsuccessfully applying for a supplementary decision from the tribunal and a stay of the final award in November 2018, Spain filed an annulment application in April 2019, the results of which remain pending. Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1, Decision on the Respondent’s Request for a Supplementary Decision, 29 November 2018, para. 66.

[28] See Tom Jones, ‘Spain Ordered To Pay After Another ECT Loss’, Global Arbitration Review, 15 November 2018; Antin v. Spain, ICSID Case No. ARB/13/36, Award, 15 June 2018, paras. 111 to 131. In 2019, Spain applied to annul the Antin award on the grounds that the tribunal (1) had already been forced to reduce the original Award by €11 million, thereby reflecting the award’s inherent flaw, (2) exceeded its jurisdiction under ECT and EU law and acted outside the parties’ consent to arbitrate, (3) prevented the European Commission from intervening as amicus curiae in the arbitration, and (4) failed to state the reasons why the tribunal failed to properly apply EU law. In the meantime, the annulment committee has refused to stay the enforcement of the award. See Damien Charlotin, ‘After Spain award is trimmed down by €11 million, annulment committee declines request to stay its enforcement’, Inv. Arb. Rep., 31 October 2019.

[29] See NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ARB/14/11, Award, 31 May 2019, para. 37; Damien Charlotin, ‘Analysis: Newly divulged NextEra v. Spain decisions reveal fault lines between solar dispute tribunals on legitimate expectations derived from legislation and appropriateness of DCF’, Inv. Arb. Rep., 10 June 2019.

[30] SolEs Badajoz GmbH v. Spain, ICSID Case No. ARB/15/38, Award, 31 July 2019, para. 576(3). The Tribunal rendered a rectification award on 5 December 2019; currently, there is an annulment proceeding pending. Case Details, SolEs Badajoz GmbH v. Spain, ICSID Case No. ARB/15/38.

[31] OperaFund Eco-Invest and Schwab Holding v. Spain, ICSID Case No. ARB/15/36, Award, 6 September 2019, para. 490; Lisa Bohmer, ‘In Operafund v. Spain Award, reasons emerge for split amongst arbitrators as to ‘express stability commitment’ in Spanish renewables’, Inv. Arb. Rep., 27 September 2019. Spain’s annulment application remains pending. Case Details, OperaFund Eco-Invest and Schwab Holding v. Spain, ICSID Case No. ARB/14/1.

[32] IAReporter, ‘Spain Files for Annulment of €42 Million ECT Award’, Inv. Arb. Rep., 8 April 2020,

[33] ‘Spain partially liable in solar case’, Global Arbitration Review, 1 September 2020; Cavalum SGPS, S.A. v. Spain (ICSID Case No. ARB/15/34, Decision on Jurisdiction, Liability, and Direction on Quantum, 31 August 2020, para. 706. The Tribunal deferred rendering an award on quantum and instead directed the parties to confer and seek mutual agreement on what the claimant’s reasonable rate of return ought to have been but for Spain’s regulatory reforms.

[34] Isolux Infrastructure Netherlands B.V. v. Spain CSP Equity Investment S.à r.l. v. Spain (SCC; registered in 2013).

[35] See Tom Jones, ‘Second loss for Spain over solar reforms’ (footnote 24, above).

[36] Lisa Bohmer, ‘Analysis: majority in Stadtwerke Munchen v. Spain considers that investors in Spanish CSP plants could not legitimately expect legislative stability; Kaj Hober disagrees’, Inv. Arb. Rep., 5 December 2019; Stadtwerke München GmbH, RWE Innogy GmbH, et al. v. Spain, ICSID Case No. ARB/15/1, Award, 2 December 2019, para. 265. The claimant investors filed for annulment of the tribunal’s award on 6 April 2020. Lisa Bohmer, ‘German CSP investors file for annulment of ICSID award which found that they could not legitimately expect legal stability’, Inv. Arb. Rep., 7 April 2020.

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

[38] 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 Juan M Tirado (footnote 4, above), at 7 to 8 and nn.35 to 39 (discussing regulatory changes in the Czech Republic).

[39] 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.

[40] id.

[41] See Natland Investment Group NV, Natland Group Limited, G.I.H.G. Limited, and Radiance Energy Holding S.à r.l. v. Czech Republic (UNCITRAL; commenced in 2013); Voltaic Network GmbH v. Czech Republic (UNCITRAL; commenced in 2013); ICW Europe Investments Limited v. Czech Republic (UNCITRAL; commenced in 2013); Photovoltaik Knopf Betriebs-GmbH v. Czech Republic (UNCITRAL; commenced in 2013); WA Investments-Europa Nova Limited v. Czech Republic (UNCITRAL; commenced in 2013); Jürgen Wirtgen, Stefan Wirtgen & JSW Solar GmbH & Co. KG v. Czech Republic (UNCITRAL; commenced in 2013).

[42] 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 and Kyriaki Karadelis, ‘Sun rises on Czech Energy claims’, Global Arbitration Review, 19 February 2014.

[43] See ‘Czech Republic wins first solar case’, Global Arbitration Review, 13 October 2017.

[44] See ‘Czech Republic wins second solar case’, Global Arbitration Review, 4 May 2018 (describing the award in the Antaris arbitration); Cosmo Sanderson, ‘Four more solar wins for Czech Republic’, Global Arbitration Review, 17 May 2019 (describing the awards in the ICW Europe, Photovoltaik Knopf Betriebs, Voltaic Network and WA Investments arbitrations).

[45] See Natland Investment Group NV, Natland Group Limited, G.I.H.G. Limited, and Radiance Energy Holding S.à r.l. v. Czech Republic (UNCITRAL; commenced in 2013); see also Cosmo Sanderson, ‘Four more solar wins for Czech Republic’ (footnote 45, above).

[46] id.; see also Tom Jones and Alison Ross, ‘Czech Republic hits back at reports of solar loss’, Global Arbitration Review, 25 January 2018.

[47] Sebastian Perry, ‘Czech challenge to solar award fails in Switzerland’, Global Arbitration Review, 14 February 2020; see also Damien Charlotin, ‘Swiss federal tribunal sees no abuse of rights in corporate restructuring, and Declines to set aside liability award in Czech renewables dispute’, Inv. Arb. Rep., 13 July 2020; Tribunal fédéral, 7 February 2020, 4A_80/2018 (Switz.)

[48] id.

[49] The Czech Republic is currently appealing the decision to the Court of Justice of the European Union. See Sebastian Perry, ‘Czech challenge to solar award fails in Switzerland’ (footnote 48, above).

[50] For a detailed analysis of the Italian renewable energy legal framework, see Zuzanna 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 Saverio Francesco 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.

[51] See Saverio Francesco Massari, ‘The Italian photovoltaic sector in two practical cases’ (footnote 50, above).

[52] Legislative Decree No. 91 of 24 June 2014, Article 26.

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

[54] See Veolia Propreté SAS v. Italy, ICSID Case No. ARB/18/20; VC Holding II S.à 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. Of these cases, two have concluded: Belenergia S.A. v. Italy and Blusun SA, Jean-Pierre Lecorcier and Nichael Stein v. Italy.

[55] See Sun Reserve Luxco Holdings SRL v. Italy, SCC Case No. 32/2016; CEF Energia BV v. Italy, SCC Case No. 158/2015; Greentech Energy Systems A/S, et al v. Italy, SCC Case No. V 2015/095. For other cases filed at the SCC, see Lacey Yong, ‘Italy faces another solar claim’, Global Arbitration Review, 13 December 2016.

[56] See Tom Jones, ‘Light shed on Italy’s solar win’, Global Arbitration Review, 8 June 2017. The investor subsequently filed for an annulment of the award. See Douglas Thomson, ‘Solar power investor seeks to annul ECT award in favour of Italy’, Global Arbitration Review, 4 May 2017.

[57] id.; see also Blusun SA, Jean-Pierre Lecorcier and Nichael Stein v. Italy, ICSID Case No. ARB/14/03, Award, 27 December 2016, paras. 374, 401, 407.

[58] Damien Charlotin, ‘Breaking: SCC tribunal finds no breach of Energy Charter Treaty by Italy in latest award to decide renewables claims’, Inv. Arb. Rep., 27 March 2020; Sun Reserve Luxco Holdings SRL v. Italy, SCC Case No. 32/2016, Final Award, 25 March 2020, para. 1043.

[59] See Greentech Energy Systems A/S, NovEnergia II Energy & Environment (SCA) SIGAR, and NovEnergia II Italian Portfolio SA v. Italy, Final Award, 23 December 2018, para. 594; see also Tom Jones, ‘Italy suffers first loss in solar claim’, Global Arbitration Review, 2 January 2019. Arbitrator Sacerdoti dissented and would have found no violation of the FET standard. See Dissenting Opinion of Arbitrator Giorgio Sacerdoti, paras. 47 to 57.

[60] 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.

[61] Lorenzo Parola et al. (footnote 61, above).

[62] One procedural issue deserves special mention. Spain, the Czech Republic and Italy have elected the exception under ECT, Article 26(3)(b)(i), 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. Arbitral tribunals, however, usually take a narrow view of these ‘fork-in-the-road’ provisions, and strictly apply the ‘triple identity test’. Under this test, the fork-in-the-road provision is triggered only when 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. For instance, the Charanne tribunal rejected Spain’s fork-in-the-road objection that was based on 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 (footnote 16, above), paras. 405 to 408. The tribunal in Charanne also noted that proceedings before the ECtHR fall outside the scope of ECT, Article 26.

[63] 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 Alexander 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.

[64] See Christopher F Dugan, Don Wallace Jr, Noah D Rubins, Borzu Sabahi, ‘Investor-State Arbitration’ 502 (2008).

[65] See, e.g., Rudolf Dolzer, ‘Fair and equitable treatment: today’s contours’, 12 Santa Clara J. Int’l L. 7, (2014); Patrick Dumberry, ‘The protection of investors’ legitimate expectations and the fair and equitable treatment standard under NAFTA Article 1105’, 31 J. Int’l Arb., 47 to 73 (2014); Christoph Schreuer, ‘The fair and equitable treatment in arbitral practice’, 6 J. World Inv. and Trade 3 (June 2005); Christoph Schreuer, ‘Fair and equitable treatment (FET): interactions with other standards’, in Graham Coop and Clarisse Ribeiro, Investment Protection and the Energy Charter Treaty, 66 and ff (2008).

[66] Effective as of 1 July 2020, the United States, Mexico and Canada entered into the United States-Mexico-Canada Agreement (USMCA) as the successor to NAFTA. The USMCA retains the previous FET protections for investors.

[67] See, e.g., Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Kazakhstan, ICSID Case No. ARB/05/16; see generally R Dolzer (footnote 66, above), at 17 to 19.

[68] See Christopher F Dugan et al. (footnote 65, above), at 513.

[69] See Tecnicas Medioambientales Tecmed S.A. v. Mexico, ICSID Case No. ARB (AF)/00/2. The Tribunal in RREEF Infrastructure adopted similar reasoning, stating that the FET standard includes at least ‘the minimum standard as applied traditionally in international law,’ including commitments on ‘(i) transparency, (ii) constant protection and security, (iii) non-impairment including (iv) non-discrimination[,] and (v) proportionality and reasonableness’. RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and the Principles of Quantum, 30 November 2018, para. 260.

[70] CMS Gas Transmission Company v. Argentina, ICSID Case No. ARB/01/8; see also Christopher F Dugan et al. (footnote 65, above), 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).

[71] RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and the Principles of Quantum, 30 November 2018, para. 315; Lisa Bohmer, ‘A new Spain ruling surfaces, revealing that tribunal majority sees a more limited legitimate expectation: to reasonable rate of return for energy investors, but not to broader regulatory stability,’ Inv. Arb. Rep., 17 March 2019.

[72] EDF (Services) Ltd v. Romania, ICSID Case No. ARB05/13, Award; see also Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v. Spain, ICSID Case No. ARB/15/42, Award, 9 March 2020, para. 584 (stating that ‘without specific promises, the investor may not rely on an investment treaty as a kind of insurance policy against the risk of any changes in the host State’s legal and economic framework’).

[73] PV Investors, Final Award (footnote 15, above), para. 583.

[74] 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. The legitimate expectations test, according to the RREEF Infrastructure tribunal, is an objective standard that is ‘high, and only measures taken in clear violation of the FET will be declared unlawful and entail responsibility of the State.’ RREEF Infrastructure, Decision on Responsibility (footnote 69, above), para. 262.

[75] Lisa Bohmer, ‘In Operafund v. Spain award, reasons emerge for split amongst arbitrators as to ‘express stability commitment’ in Spanish renewables,’ Inv. Arb. Rep., 27 September 2019; OperaFund Eco-Invest and Schwab Holding v. Spain, ICSID Case No. ARB/15/36, Award, 6 September 2019, paras. 490, 549.

[76] OperaFund, Award (footnote 75, above), para. 510. Using similar reasoning, the tribunal in Cube Infrastructure concluded the claimants had legitimate expectations of regulatory stability with respect to their photovoltaic investments because Spain’s revised incentive system, which was based on a reasonable rate of return, was a ‘radical and decisive break with the earlier regime’ that was in place when the claimants made their investment, which explicitly stated that future tariff revisions would not have any retroactive effect. IAReporter, ‘Spain files for annulment of €42 million ECT award’, Inv. Arb. Rep., 8 April 2020.

[77] See, e.g., Watkins Holdings S.à r.l. and others v. Spain, ICSID Case No. ARB/15/44, Award, 21 January 2020, para. 518 (concluding that the investors’ legitimate expectations can rest upon ‘any undertakings and representations made explicitly or implicitly by the host State’); InfraRed Environmental Infrastructure GP Limited, et al v. Spain, ICSID Case No. ARB/14/12 (finding that Spain’s communications with the investors created legitimate expectations that their concentrated solar power plants would be shielded from future revisions to the FIT system, which Spain then breached when it reformed that system in 2013). Arbitral tribunals applying Article 1105 of NAFTA have generally followed this approach, enquiring 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, tribunals have 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 (footnote 66, above), at 43 to 47 (discussing Glamis Gold Ltd. v. United States, UNCITRAL, Award, 8 June 2009).

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

[79] id., at paras. 310 to 312; Alexander Reuter, ‘Retroactive reduction of support for renewable energy and investment treaty protection’ (footnote 64, above), at 24.

[80] See Alexander Reuter, ‘Retroactive reduction of support for renewable energy and investment treaty protection’ (footnote 64, above), 24, 30.

[81] Sun Reserve, Final Award (footnote 59, above), para. 688. See Damien Charlotin, ‘Breaking: SCC tribunal finds no breach of Energy Charter Treaty by Italy, in latest award to decide renewables claims’, Inv. Arb. Rep., 27 March 2020.

[82] Sun Reserve, Final Award (footnote 59, above), para. 710. D Charlotin, ‘SCC tribunal finds no breach of Energy Charter Treaty by Italy’ (footnote 59, above).

[83] Sun Reserve, Final Award (footnote 59, above), para. 740. The tribunal also agreed with Italy that the relevant date of investment was when the claimants acquired their relevant shareholding in the company developing and operating the solar plants, and not when the plants started operating. id., at para. 753.

[84] id., at para. 688.

[85] Charanne (footnote 16, above), para. 499.

[86] id., at paras. 497, 504 to 508. Arbitrator Professor Guido Santiago 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. Dissenting Opinion of Prof. Guido Santiago Tawil, paras. 5 to 12.

[87] Charanne (footnote 16, above), paras. 545 to 546.

[88] Lisa Bohmer, ‘Analysis: majority in Stadtwerke Munchen v. Spain (footnote 37, above); Stadtwerke München GmbH, RWE Innogy GmbH, et al. v. Spain, ICSID Case No. ARB/15/1, Award, 2 December 2019, paras. 265, 308. The German investors filed for annulment of the tribunal’s award on 6 April 2020. Lisa Bohmer, ‘German CSP investors file for annulment of ICSID award which found that they could not legitimately expect legal stability’, Inv. Arb. Rep., 7 April 2020.

[89] Blusun SA, Jean-Pierre Lecorcier and Nichael Stein v. Italy, ICSID Case No. ARB/14/03, Award, 27 December 2016, para. 374.

[90] id., at para. 394; see also Tom Jones, ‘Light shed on Italy’s solar win’ (footnote 57, above).

[91] Antin Infrastructure Services Luxembourg S.à r.l. and Antin Energia Termosolar B.V. v. Spain, ICSID Case No. ARB/13/31, Award, 15 June 2018; Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018; PV Investors v. Spain, PCA Case No. 2012-14, Final Award, 28 February 2020; RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Spain, ICSID Case No. ARB/13/30, Decision on Responsibility, 30 November 2018; NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ARB/14/11, Award, 31 May 2019; 9REN Holding S.à r.l. v. Spain, ICSID Case No. ARB/15/15, Award, 31 May 2019; Watkins Holdings S.à r.l. and others v. Spain, ICSID Case No. ARB/15/44, Award, 21 January 2020; Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v. Spain, ICSID Case No. ARB/15/42, Award, 9 March 2020; SolEs Badajoz GmbH v. Spain, ICSID Case No. ARB/15/38, 31 July 2019; Cavalum SGPS, S.A. v. Spain (ICSID Case No. ARB/15/34, Decision on Jurisdiction, Liability, and Direction on Quantum, 31 August 2020, para. 706.

[92] In awarding €90 million, €59.6 million and €290.6 million in damages to the claimant investors, respectively, the PV Investors, RREEF Infrastructure and NextEra Energy tribunals considered the ‘reasonable return’ that the investors expected to make at the time of their investment and calculated the difference between that reasonable return and the return that the investors stood to make under the altered regulatory regime. PV Investors, Final Award (footnote 15, above), paras. 638 to 640, 909; RREEF Infrastructure, Decision on Responsibility (footnote 69, above), paras. 262 to 263 and RREEF Infrastructure, Award, 11 December 2019, para. 81; NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ARB/14/11, Award, 31 May 2019, paras. 37, 31; see also Masdar Solar & Wind Cooperatief U.A. v. Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018, paras. 489 to 522; Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v. Spain, ICSID Case No. ARB/15/42, Award, 9 March 2020, paras. 306 to 307; Cavalum SGPS, S.A. v. Spain (ICSID Case No. ARB/15/34, Decision on Jurisdiction, Liability, and Direction on Quantum, 31 August 2020, para. 706.

[93] 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 Alexander Reuter, ‘Retroactive reduction of support for renewable energy and investment treaty protection’ (footnote 64, above), at 31 to 41; see section titled ‘The European Commission’s role in ECT renewable energy arbitrations and jurisdictional considerations’, below; 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.

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

[95] id., at para. 1.2.

[96] id., at para. 4.3.1.

[97] id. The Nykomb decision has been questioned because it allegedly adopts an unjustifiably narrow view of indirect expropriation and fails 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, 889, 899 to 901 (2013). Tribunals that have 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, among other factors, 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.

[98] Charanne (footnote 16, above), para. 461 (citing arbitral decisions).

[99] id., at paras. 462 to 465.

[100] Blusun (footnote 58, above), paras. 401, 407.

[101] id., at para. 409 n.659.

[102] See, e.g., PV Investors, Final Award (footnote 15, above), para. 691 n.877 (The tribunal only addressed the claimants’ claim that Spain breached the FET standard under the ECT and declined to address the merits of the claimants’ expropriation claim).

[103] 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.

[104] 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 and Laura Lozano, ‘More than a friend of the court: the evolving role of the European Commission in investor-state arbitration’, 16 January 2015.

[105] Charanne (footnote 16, above), para. 425.

[106] See Carlos Gonzalez-Bueno and Laura Lozano (foonote 104, above); 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, Decision on Responsibility (footnote 69, above), paras. 31 to 32; Antin v. Spain, ICSID Case No. ARB/13/36, Award, 15 June 2018.

[107] Luke Eric Peterson, ‘European Commission wades into solar arbitrations against Spain’ (footnote 106, above); 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.

[108] id.; see also Kim Talus, ‘Introduction: Renewable Energy Disputes in Europe and Beyond’ (footnote 3, above), at 10 to 13.

[109] Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19 (footnote 93), at IV-27. The EC did not make this argument in the Charanne arbitration, possibly because the European Commission’s review of whether Spain’s original incentive regime for renewable energy complied with the state aid rules was still pending. Charanne (footnote 16, above), paras. 448 to 449.

[110] Luke Eric Peterson, ‘European Commission wades into solar arbitrations against Spain’ (footnote 106, above).

[111] Charanne (footnote note 16, above), para. 429. The tribunal in SolEs Badajoz GmbH v. Spain, ICSID Case No. ARB/15/38 rejected Spain’s intra-EU objection that the ECT only allowed for arbitration of disputes between a state party to the ECT and an investor from ‘another contracting party’. The tribunal found that if this implied exception were adopted, it would effectively eliminate all arbitration agreements between EU investors and other EU Member States under the ECT. See Damien Charlotin, ‘Analysis in previously confidential SolEs Badajoz v. Spain Award, arbitrators lay out reasons for finding jurisdiction and awarding €40 million to investor for breach of the ECT’, Inv. Arb. Rep., 4 September 2019.

[112] Charanne (footnote note 16, above), para. 431.

[113] See Eskosol S.p.A. in Liquidazione v. Italy, ICSID Case No. ARB/15/50, Decision on Italy’s request for immediate termination and Italy’s jurisdictional objection based on inapplicability of the Energy Charter Treat to intra-EU disputes, 19 May 2019.

[114] id.

[115] Charanne (footnote note 16, above), para. 431.

[116] See Statement submitted by the European Communities to the Secretariat of the Energy Charter pursuant to Article 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 to 209 (2009).

[117] Markus Burgstaller (footnote 116, above), at 208.

[118] Slovak Republic v. Achmea B.V., ECJ Case No. C-284/16, Judgment, 6 March 2018.

[119] See Tom Jones, ‘EU countries to cancel BITs post-Achmea’, Global Arbitration Review, 17 January 2019.

[120] id.

[121] See Tom Jones, ‘Achmea and the ECT: investor and state perspectives’, Global Arbitration Review, 17 May 2019; see also Jack Ballantyne, ‘Italy obtains stay of enforcement of ECT awards’, Global Arbitration Review, 29 May 2019; see also Lisa Bohmer, ‘Analysis: majority in Stadtwerke Munchen v. Spain (footnote 37, above). For example, in October 2019, the ICSID tribunal in LSG Building Solutions GbmH v. Romania issued an order rejecting several of Romania’s jurisdictional objections, including an objection based on Achmea, which Romania argued rendered ECT, Article 26 inapplicable to intra-EU disputes. LSG Building Solutions GbmH and others v. Romania, ICSID Case No. ARB/18/19, Procedural Order No. 3 – Decision on bifurcation, 9 October 2019. Romania unsuccessfully challenged the tribunal’s jurisdiction based on (1) the multi-party objection, given that 10 claimant companies incorporated in five countries are attempting to adjudicate their claim jointly and (2) the nationality objection under ECT, Articles 17 and 25, which do not permit arbitrations to be brought against an investor’s own state.

[122] See Eskosol (footnote 113, above). A number of tribunals have adopted similar reasoning in (1) rejecting intra-EU jurisdictional challenges lodged by a respondent state and (2) determining that Achmea does not divest tribunals of jurisdiction under ECT, Article 26. For instance, the Stockholm Chamber of Commerce [SCC] tribunal in Sun Reserve noted that to the extent EU law was relevant in that case, it only affected substantive Swedish law and did not impose any outer limits on the tribunal’s jurisdiction. See Damien Charlotin, ‘Breaking: SCC tribunal finds no breach of Energy Charter Treaty by Italy, in latest award to decide renewables claims’, Inv. Arb. Rep., 27 March 2020. The tribunal in Stadtwerke limited the application of Achmea to the Dutch–Slovak BIT at issue in that case and therefore concluded that EU law posed no jurisdictional barriers to issuing an award. See Lisa Bohmer, ‘Analysis: majority in Stadtwerke Munchen v. Spain (footnote 37, above). The tribunal in 9REN Holding also rejected similar arguments from Spain and held that (1) Achmea involved an intra-EU BIT, rather than a multilateral international treaty, and (2) the European Union, by joining the ECT, had consented to submit to the jurisdiction of international arbitral tribunals. 9REN Holding S.à r.l. v. Spain, ICSID Case No. ARB/15/15, Award, 31 May 2019, paras. 141(a), 152. In addition, the tribunal in Hydro Energy found that the Achmea ruling was a ‘decision on the constitutional order of the EU in support of the policy of European integration, rather than an orthodox application of the rules of treaty interpretation’. Lisa Bohmer, ‘Analysis in latest award against Spain, arbitrators decide that investors in small hydro plants could not reasonably expect fixed incentives, but were entitled to a reasonable rate of return’, Inv. Arb. Rep., 13 March 2020. Likewise, the ICSID tribunal in Cube Infrastructure Fund concluded that ‘within the system of international law, EU law does not have supremacy . . . over rules of international law, including the ECT’ and declined to extend Achmea because, unlike in Achmea, the tribunal’s jurisdiction was based on two multilateral treaties extending beyond the European Union, namely the ECT and the ICSID Convention. IAReporter, ‘Spain files for annulment of €42 million ECT award’, Inv. Arb. Rep., 8 April 2020.

[123] See Eskosol (footnote 113, above), paras. 219 to 227.

[124] See Jack Ballantyne, ‘Italy obtains stay of enforcement of ECT awards’ (footnote 121, above).

[125] See Eskosol (footnote 113, above), paras. 230 to 231.

[126] See Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union, available at https://ec.europa.eu/info/files/200505-bilateral-investment-treaties-agreement_en. Four EU Member States (Austria, Finland, Ireland and Sweden) did not sign the agreement. The agreement entered into force on 29 August 2020, but is subject to ratification by its signatories.

[127] id., preamble.

[128] See Energy Charter Conference, Modernisation of the Energy Charter Treaty: Mandate, Procedural Issues and Timeline for Negotiations, Decision No. CCDEC2019 10 (6 November 2019).

[129] See, e.g., Energy Charter Conference, Modernisation of the Energy Charter Treaty, Decision No. CCDEC2018 18 (27 November 2018) (list of broad topics for negotiations); Energy Charter Conference, Policy Options for Modernisation of the ECT, Decision No. CCDEC2019 08 (6 October 2019) at 44 (comment by Kazakhstan).

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