This article was first published in GAR’s European Arbitration Review, 14 October 2016
The past year has been tumultuous for the energy sector. Proxy wars and uprisings continue to destabilise the Middle East and North Africa; the migrant crisis and the Brexit vote have destabilised an economically moribund European Union. Demand for oil and gas remains depressed due to sluggish economic recovery and the need to reduce CO2 emissions (especially in light of the COP21 Paris Agreement), while supply remains high due to geopolitical factors in the Middle East (including Iranian sanctions being lifted). This has resulted in a persistently depressed oil price. The arrival of the first cargoes of US shale-sourced LNG in Europe signalled further downward pressure on European gas prices.
These difficult conditions have contributed to some significant developments in the field of energy arbitration in the past year. Energy Charter Treaty (ECT) claims made Western Europe the most sued region before the International Centre for the Settlement of Investment Disputes (ICSID) during 2015, largely due to yet more claims against Spain in relation to the 2010 and 2013 amendments to the regulatory framework of its renewables industry. At the time of writing, Spain faces at least 26 ongoing arbitrations. Indeed, as set out below, few EU states appear immune to ECT claims, based on the number of cases pending in the past year.
However, this year also saw the first reported decision by a tribunal constituted to consider whether or not the measures taken by Spain constituted a breach of the ECT. Given the importance of this decision in the context of European energy arbitration, a significant amount of this overview is dedicated to consideration of the award in Charanne B.V. and Construction Investments S.á.r.l v Kingdom of Spain (Arbitration No. 062/2012) (Charanne).
This overview also considers the approach of the EU and its institutions to the controversial subject of intra-EU BITs/MITs, such as the ECT. This year saw a further two arbitral decisions considering the European Commission’s (EC) position on competence over disputes under such instruments, with the results leaving the EC in a difficult situation in respect of achieving its aims of unifying energy policy across all member states.
Finally, this overview will address the impact of continued depression of the global oil price on disputes, including whether or not the recent glut of gas price review arbitrations in Europe is likely to continue.
Charanne: is the sun is about to set on Spanish solar panel ECT claims?
Perhaps the biggest development in the field of energy arbitration in the past year came in the form of the SCC award in Charanne.1 The award may be significant not only for Spain’s remaining ECT caseload but also more widely for investors in Europe’s energy sector.
Spain’s regulatory changes
During 2007 and 2008, Spain’s Ministry of Industry, Energy and Tourism promoted its solar energy sector with a campaign under the slogan ‘The sun can be yours.’ Spain’s actions were designed, pursuant to the EC’s objectives, to promote renewable power generation (Directive 2001/77EC). Among the measures included in the ‘Special Regime’ were (i) a specified feed-in tariff for a 25-year period, following which certain generators would benefit from 80 per cent of the feed-in tariff; (ii) an entitlement to distribute all energy generated to the Spanish electricity grid; and (iii) no limitation on the operating hours of generators.
Spain’s promotional drive led to a flooding of the solar sector. This, coupled with the effect of the global financial crisis on the Spanish economy, led Spain to enact two further pieces of legislation in 2010 which had a substantial impact upon the Special Regime. Royal Decree 1565/2010 removed the applicability of the feed-in tariff to generators after the 26th year of the solar plant’s life (subsequently increased to 30 years) and added the requirement that certain plants install mechanisms to protect the electricity grid from voltage dips. Royal Decree 1614/2010 together with Royal Decree-Law 14/2010 introduced a limit on the amount of operating hours subject to the feed-in tariff and a charge of €0.5/MW for access to the transmission grid. Further changes to the Special Regime were enacted by the Spanish government in 2013 – however, and potentially critically, such legislative measures were not raised by the claimants in this arbitration.
The co-claimants – Charanne B.V. (a Dutch company) and Construction Investments S.á.r.l. (a Luxembourg company) – brought their claim under the ECT on the basis of their shareholding in Grupo T-Solar Global SA (T-Solar), which owned a number of solar plants in Spain. They argued that the 2010 legislative amendments had retrospectively and detrimentally affected the legal and economic framework within which they had decided to invest. More specifically, they argued:
- in breach of ECT, article 13(1) Spain’s actions ‘caused a brutal economic impact on the profitability of the activity of T-Solar and constitute[d] an expropriation of a substantial part of the value and returns of the[ir] investment’;2 and
- in breach of ECT, articles 10(1) and 10(12), Spain’s actions ‘violated the standard of fair and equitable treatment frustrating the legitimate expectations of the Claimants by breaking the stability of the regulatory framework under which they invested’.3
Spain’s primary response to the claims was to challenge the jurisdiction of the tribunal on three grounds. First, Spain argued that by having already taken the dispute to the Supreme Court of Spain and the European Court of Human Rights (ECHR), the claimants had invoked the ‘fork in the road’ provision in ECT, article 23(2)(b)(i). Secondly, Spain asserted that neither claimant qualified as an ‘investor’ for the purposes of ECT, article 1(7)(a) as their ultimate shareholders were Spanish nationals (and that the resolution of the dispute by this tribunal would breach the Spanish constitution as not all Spanish nationals have access to arbitration). Thirdly, as discussed in more detail below, for reasons overlapping to a degree with the EC’s amicus curiae brief in the arbitration, Spain argued that neither it, the Netherlands nor Luxembourg consented to disputes under the ECT being resolved by arbitration in an intra-EU context.
The tribunal dismissed all of Spain’s jurisdictional objections. It found that the fork in the road clause did not fall for consideration, holding that the claimants in the arbitration had not, themselves, brought either the proceedings before the Spanish Supreme Court (brought by the T-Solar Group together with other owners of plants affected by the changes to the Special Regime), or the ECHR claim (various subsidiaries of T-Solar).4 In a potentially important ruling in respect of future claims by investors under the ECT, the tribunal stated that the nationality requirement under the ECT is limited to what it says. The tribunal rejected Spain’s argument that ‘the “foreign” nature of the legal entity is not a formal requirement, but an objective condition that allows the arbitral tribunals to lift the corporate veil to determine the real controller of the company.’ While the tribunal accepted that the lifting of the corporate veil might be acceptable in circumstances of ‘fraud directed at jurisdiction’5 (ie, the movement of assets post-dispute to a jurisdiction of a contracting party for the exclusive purpose of obtaining ECT protection), the only requirement of ECT, article 1(7) was that the investor be ‘organised in accordance with the law applicable in that Contracting Party’. As this issue was not in dispute, Spain’s challenge failed.6
As to the substantive claims, the tribunal ruled against the claimants in both respects. In rejecting the indirect expropriation claim the tribunal followed the well-trodden path in treaty case law that: ‘[f]or a measure to be considered as equivalent to an expropriation, its effects must be of such a significance that it could be considered that the investor has been deprived, in whole or in part, of its investment’.7 As the legislative changes made by Spain in 2010 maintained the profitability of the T-Solar plants, albeit at a reduced rate, there was no circumstance in which the ‘loss of value [was] such that it [could] be considered equivalent to a deprivation in property’.8
Of perhaps more far-reaching consequences was the tribunal’s ruling in respect of the claim for breach of fair and equitable treatment. The claimants had specifically excluded from their claim the 2013 legislative reforms and so the tribunal could not reach a conclusion as to whether Spain had violated its obligation of regulatory stability. The tribunal was therefore left in assessing only whether the 2010 legislative amendments infringed other elements of ECT, article 10(1) to which the investors’ legitimate expectations would be relevant. The tribunal determined that Spain’s actions had not breached the claimants’ legitimate expectations. In summary, the majority of the tribunal held that:
- The claimants had not received any specific promises or commitments by Spain. The Special Regime did not create commitments to each individual investor simply because it was directed at a specific group of investors. To find otherwise ‘would constitute an excessive limitation on [the] power of states to regulate the economy in accordance with the public interest’.9
- The Tribunal went on to consider whether the ‘legal order in force at the time’ was capable of creating such legitimate expectations. The majority concluded that it was not, given that the materials provided to investors in 2007 contained no language from which an investor could reasonably infer that the Special Regime (and the associated feed-in tariff) would remain in place for the regulatory lives of the solar plants.10 To decide otherwise would mean that ‘any modification in the amount of the tariff or any limitation on the number of eligible hours would then constitute a violation of international law’.11
In respect of the second finding, and of particular relevance for both Spain and investors seeking to bring a potential claim under the ECT, the majority agreed with Spain’s contention that ‘in order to exercise the right of legitimate expectations, the Claimants should have made a diligent analysis of the legal framework for the investment.’12 The Tribunal ruled that had the claimants done so, they would have foreseen potential amendment to the Special Regime by way of clearly established Spanish legal principle that its domestic law would permit changes to regulation.
The tribunal’s analysis of a potential breach of the claimants’ legitimate expectations went further. It accepted the claimants’ contention that, even absent a specific commitment or promise, a contracting state could still breach legitimate expectations where it performs acts incompatible with the notion of economic reasonableness, the principle of proportionality and/or the public interest. Again, however, the majority found that the 2010 legislative amendments breached none of these. With regard to the first two criteria, the tribunal held that the adjustments made in 2010 did not supress the essential elements of the Special Regime as solar power generators maintained their right to the feed-in tariff for a period of 30 years, the latter limitation being based on an objective criteria concerning the expected life of the specific form of plant. Coupled with the fact that the limitation on eligible hours was based on the climatic zone (according to average solar radiation in Spain) and the type of technology used, this led the majority to conclude that although the measures could harm the economic interests of solar generators, they were implemented according to objective criteria and could not be deemed irrational or arbitrary. Finally, the majority considered that it was not contrary to public interest for Spain to have implemented measures to limit the deficit and control pricing.
The potential impact of the award
The Charanne decision has no binding effect on other tribunals constituted under the ECT. However, both the jurisdictional and merits decisions in Charanne are potentially significant for both Spain and investors seeking to bring arbitration proceedings under the ECT.
On jurisdiction,13 the tribunal was clear that, absent treaty fraud, the ECT does not provide for the lifting of the corporate veil. As such, domestic investors may take comfort that, with adequate corporate organisation, they can make investments in respect of their domestic energy market and still maintain the protections afforded by the ECT. While some contracting states (and commentators) may argue that this subverts the purpose of the ECT, the Charanne tribunal was clear that to decide otherwise would be to run contrary to the intentions of those who drafted the ECT.
As regards the merits of the claim, Spain (and other countries in Spain’s position) might take comfort in a well-reasoned decision by a majority of a distinguished tribunal supportive of a state’s exercise of its legitimate powers to regulate. Indeed, at the time of writing, the authors are aware of reports alluding to another victory for Spain in a further case brought under the ECT (Isolux Infrastructure Netherlands B.V. v Kingdom of Spain, Stockholm Chamber of Commerce). However, Spain ought not to celebrate quite yet. First, the Charanne decision concerned only the 2010 measures; an assessment of the impact of further revisions could yield different results regarding the breach of investors’ legitimate expectations. In addition, the Charanne decision in this regard was not unanimous; the claimants’ appointed arbitrator – Professor Guido Santiago Tawil – considered that the majority was wrong to limit an investor’s legitimate expectations to either a specific promise or commitment or specific terms granted by the host state. In his opinion, such legitimate expectations could also be based on the ‘legal order in force when the investment is made’.14 On his analysis, legitimate expectations had arisen in respect of the claimants taking all factors into account and ‘it [did] not appear as legally acceptable to recognise a prerogative to the host state to modify and eliminate this benefit without any judicial consequences.’15 Therefore, the contracting state would always retain its regulatory powers, even in the face of a stabilisation clause, but if the use of those powers affects an investor’s acquired rights or legitimate expectations, compensation must be provided. While only a dissenting opinion, with over 20 similar cases remaining against Spain and none of those tribunals bound to follow the majority decision in Charanne, it will only take one following Professor Tawil’s reasoning for the state to be held liable for a breach of the ECT. This would not only be a concern for Spain, but a plethora of other contracting states facing ECT claims arising out of the exercise of regulatory powers (see below).
On the investor side, it is noteworthy the extent to which the majority of the tribunal focused upon the expectation that an investor ought to have undertaken significant due diligence into the legal framework of the contracting state before investing in order to be deemed to have formed legitimate expectations in relation to the stability of that legal framework.
Overall, the next year is likely to be interesting for Spain, other states in a similar position to Spain, and the arbitration community. Given the volume of claims against Spain under the ECT in respect of the 2010 and 2013 measures in its renewables sector, only time will tell if Charanne represents the sunset or sunrise.
Compatibility of EU law and ECT: a bad year for the EU
The EC’s position in respect of intra-EU BITs and arbitration is well known. Under the 2009 Lisbon Treaty, the EU was granted express competence in the fields of energy and foreign direct investment and has since taken a consistently strong line that all intra-EU BITs ought to be terminated as soon as possible.
However, last year saw a blow to the EC’s position in respect to claims against EU member states under the ECT (to which the EU is also a signatory). As mentioned above, the EC submitted an amicus curiae brief in the Charanne case in respect of jurisdictional challenges based on EU law. However, while thanking the EC for its submission, the tribunal chose only to address jurisdictional objections based on EU law as submitted by Spain. Charanne is not the first case to tackle this controversial issue: in the 2012 award on jurisdiction in Electrabel S.A. v Hungary (ICSID Case No. ARB/07/19), the tribunal chose to address directly the EC ’s jurisdictional objections raised, again, by way of an amicus curiae brief. While that tribunal found that it did have jurisdiction to determine questions of EU law, it also stated (obiter) that in certain scenarios, EU law would prevail over the ECT.
Since Charanne, a further decision has been rendered addressing the jurisdiction of intra-EU ECT claims – 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). While the EC again sought to intervene in an arbitration brought under the ECT, the tribunal in this matter deemed the application inadmissible.
A consistent thread throughout these cases was the proposition by either the contracting state, and/or the EC itself, that intra-EU investment disputes fall to the exclusive jurisdiction of the EU judicial system and not to arbitration. Both the Charanne and RREEF tribunals rejected the contention that EU law and the ECT are contradictory in respect of jurisdiction over intra-EU disputes; neither tribunal agreed with the contention that the ECT contained an ‘implicit disconnect clause’ with regard to intra-EU disputes. Indeed, the RREEF tribunal went so far as to state that, in cases of inconsistency that could not be reconciled through the rules of interpretation, the ECT would prevail as a matter of public international law.
The broadly consistent approach to jurisdictional objections based on EU Law by ECT tribunals places the EC between a rock and a hard place. On the one hand, the EC could choose to maintain its current approach of seeking to intervene in all intra-EU ECT cases and argue jurisdiction, despite the wind currently blowing against it. Alternatively it could accept defeat and acknowledge that consistent interpretations of the ECT by distinguished tribunals have found no disconnect between its provisions and EC law. The EC has many issues to contend with at present, not least Brexit, the migrant crisis and the nascent Italian banking crisis. While the second option might seem sensible, therefore, in reality it is probably not an option: the Lisbon Treaty and the Third Energy Package demonstrate the EC’s desire to adopt uniform policies in respect of energy and foreign direct investment. The ability of EU investors to sue EU member states under the ECT is incompatible with that long-term view. It is not unforeseeable that the application of the EU’s energy solidarity principles, or the EU potentially taking steps to cut CO2 emissions in compliance with COP21 by (for example) intervening in the emissions trading scheme, could lead to a new wave of intra-EU ECT claims. In such circumstances, the EC would surely wish to flex its muscles again.
A sign of what may be to come in this respect can be found in the EC’s approach to the award in the non-energy related case of Iaon Micula, Viorel Micula, S.G. European Food S.A. et. al. v Romania (ICSID Case No. ARB/05/20); a case brought under the Sweden-Romania BIT. Here, the EC not only filed an amicus curiae brief in respect of the annulment request, disputing the tribunal’s jurisdiction to decide matters of EU law, but went so far as to order that Romania recover compensation paid to the claimants on the basis that such payments were incompatible with EU rules on state aid. On the face of it, the EC appears to be losing the war on the jurisdictional question, but shows no sign of surrender.
Continued global oil price volatility: are gas price reopener arbitrations over?
In recent years, gas price review arbitrations have been relatively prevalent in Europe. A significant reason for this has been the historical use of the price of oil to determine the contract price of natural gas in older long-term natural gas supply contracts. The transformation of the natural gas market over the past two decades via new and expanded trading hubs and the boom in shale gas production, predominantly in the United States, has eroded the link between oil and natural gas production, causing a significant disconnect in the pricing of the two resources. This led to buyers scrambling to trigger price review clauses, and a wave of price reopener arbitrations. Some resulted in significant awards, such as 2012’s Edison v Rasgas and Edison v Sonatrach arbitrations, and 2013’s RWE v Gazprom Export award.
This year saw a further significant decision rendered by an ICC tribunal in favour of Edison, in a price review claim against Italy’s Eni. While the award has not been published, it is understood that the claim concerned the price paid by Edison on its contract for the supply of Libyan natural gas via the subsea Green Stream pipeline. In line with a number of price review claims, Edison filed its claim on the basis that both the reduction in gas prices and the decoupling of the respective values of gas and oil meant that it was making a significant loss under the contract. According to Edison, the award provided that a revised lower price was to apply to the contract from 1 October 2012 – equating to a refund of more than €1 billion.
In a further arbitration involving Eni, the Italian company was unsuccessful in its own attempt to obtain a downward price revision to a long-term natural gas contract with GasTerra. Again, while the award is not public, it is understood that Eni had sought a price revision of around €2 billion. On the basis of this unsuccessful attempt, it is also understood that GasTerra now claims Eni owes it €918 million under the supply contract, which it is seeking to recover by way of further arbitral proceedings; it has already obtained an order for the provisional seizure of assets to the value of €1.01 billion owned by Eni’s Dutch subsidiary.
Whether such gas price reopener arbitrations are a thing of the past has been the subject of debate in the last year. Some commentators have suggested that a move towards the hub pricing model in both new and renegotiated long-term supply contracts in Europe, combined with the low oil price and the rise of Henry Hub-linked US LNG contracts, might see disputes such as those above becoming much less common. Others take the view that there will still be reopener arbitrations, but the nature of the trigger event for a reopener request may change.
However, global oil price volatility has had a wider impact on energy disputes. A 2016 Clyde & Co survey of the oil and gas industry assessed the landscape following the prolonged period of low oil prices and highlighted the challenges and concerns of senior oil and gas executives. A key finding was the widely held expectation that, as a squeeze on the industry’s profitability continues, an increase in claims and disputes is almost inevitable, with a majority of those consulted considering the causes to likely be the result of (i) counterparties becoming insolvent and/or unable to perform obligations, and/or (ii) contracts being cancelled or broken. The confidential nature of arbitration means it is difficult to know whether the industry as a whole is already experiencing this increase; however, the authors’ impression is that this is the case.
Other significant European energy sector arbitrations over the past year
It was a particularly busy year for energy claims, the majority of which arose as a result of alleged breaches of the ECT. Spain was by no means the only European state facing such claims:
In May 2016, EDF International S.A.S won its arbitration against the German federal state of Baden-Württemberg, defeating claims arising in relation to the sale of its stake in a power company to the state. The state had argued that the purchase price of the company reflected an element of state aid, in violation of European law. A majority of the tribunal found that the transaction had not included elements of state aid, holding that the claims amounted to ‘a clear attempt to abuse the European regulation of state-aid’. The tribunal also rejected EDF’s counterclaim, valued at €24.8 million, that Baden-Wüttermberg had negatively affected its brand via a campaign in France and Germany, holding that EDF had not established the quantum of the damage alleged.
Hungary received a favourable award in the second part of the Electrabel case. In the first part of the award rendered in 2012 (referred to above), the tribunal rejected all but one of the Belgian claimant’s claims, determining that Hungary’s obligations under EU law meant that it was entitled to terminate the agreements. The tribunal also rejected Electrabel’s original claim challenging price regulation for electricity generators, ruling that it was a ‘reasonably appropriate measure’ that allowed Hungary to reduce state aid and liberalise its energy market. In a further decision rendered in November 2015, the tribunal rejected the remaining claim – that Hungary had breached the ECT’s fair and equitable treatment requirement by failing to compensate the claimant for its full net stranded costs. The tribunal held that Hungary’s actions came about due to reasonable policy objectives (compliance with EU law and aligning its electricity market with the EU’s).
This further victory in Electrabel was somewhat offset by a new ECT claim raised against the state in April 2016 by Engie SA, GDF International SAS and Engie International Holdings SAS.16 It is understood that the claim of approximately €642 million concerns the Hungarian local gas distribution business, Égáz-Dégáz, and relates to taxation and other matters that are alleged to have severely affected the profitability of the claimants’ business.
In July 2016, an ICC tribunal rendered an award against the state in its arbitration against Italian electricity company Enel. In what had been described as the state’s largest ever arbitration, Romania had claimed damages totalling US$1.2 billion under a number of penalty clauses contained in the privatisation agreement that had given Enel control of Electricia Mutenia Sud. The tribunal rejected 22 out of Romania’s 24 contractual breach claims and ruled that it did not have jurisdiction over the remaining two. This is not the end of the road, however, as an arbitral claim brought in 2014 against Enel by Romanian state entity, SAPE, still remains to be determined. The claim under the same privatisation agreement seeks specific performance of a put option clause that, if affected, would compel the Italian company to purchase a further stake in Electricia Mutenia Sud at a cost of over €500 million.
The eastern European state also faces the prospect of a further ECT claim brought by the Kazakhstan state-owned oil and gas company KazMunayGas (KMG), together with its Dutch subsidiary. The dispute concerns KMG’s international subsidiary, Rompetrol, its purchase of an oil refinery from the state in 2000 and claims that the Romanian government has frozen assets of over US$2.1 billion in the company during a corruption investigation arising out of the privatisation of the refinery. Romania asserts that the value of the frozen assets is only US$470 million, equivalent to the cost to the national budget of the alleged illegal acts of individuals within Rompetrol and the government of the time. A press release made by KMG in July 2016 indicated that the company would seek to reach an amicable settlement with the state, but that if one were not possible, it would initiate arbitration either at ICSID or the Stockholm Chamber of Commerce (SCC).
August 2016 brought with it a second17 pending ECT claim against Croatia, this time brought by Netherlands-based investor, Amlyn Holding.18 The claim relates to the Dutch company’s investment in a biomass power plant at a time when it was seeking to expand its renewable energy sector as part of its bid to join the EU. It is understood that the claim concerns changes to the state’s regulatory regime following the conclusion of a long-term power purchase agreement in 2012 that led to the company losing its status as an eligible energy producer in 2013 (together with a number of separate companies). While other companies affected by the changes had their status restored by a further law change in 2014, Amlyn did not.
The brief summaries above do not do justice to the complexities and nuances of energy claims, especially those brought claiming alleged breaches of the ECT. The increased frequency of such cases perhaps indicates a greater willingness by investors into the European energy sector to use its provisions more readily to resolve disputes with states. The next year may determine whether this is, in fact, a continuing trend.
Looking to the future
This overview has highlighted issues facing European states, and Spain in particular, regarding claims under the ECT, and the EC itself in respect of seeking to implement its desire to exercise exclusive competence on intra-EU disputes. It remains to be seen whether the conclusions of the Charanne majority will be followed in the plethora of cases Spain faces; and whether it (and decisions like it) will discourage investors in energy from making claims under the ECT (although the number of new ECT claims listed above indicates that this is not the case). The decisions on jurisdiction in both Charanne and RREEF demonstrate that arbitration will very likely remain the forum for such disputes in at least the medium term, although it is difficult to see how the EC will reconcile the decisions of international arbitral panels with the bloc’s strategy.
Away from treaty claims, the oil and gas industry appears to be of the view that the continued depression of the oil price is highly likely to yield yet further disputes. It is open to question whether that increase will include new gas price reopener disputes, or whether (like fossil fuels themselves?) they are becoming a relic of the past.