Charles A Patrizia, Joseph R Profaizer, Samuel W Cooper and Igor V Timofeyev, Paul Hastings LLP
This is an extract from the third edition of GAR’s The Guide to Energy Arbitrations. The whole publication is available here.
The renewable energy sector often depends on large, upfront investments, which can only be recouped over a long period. Given the substantial initial capital investment required, many countries (particularly those in the European Union) have enacted schemes, such as feed-in tariffs or other special rates, to encourage long-term investment. Investors in the renewable energy sector have a strong interest in the stability of this regulatory regime – including, significantly, the continuity of any incentive schemes for renewable energy over the period of expected recovery – and protection from unwarranted government policy changes that could amount to expropriation or a denial of fair and equitable treatment.
An important response to investors' desire for assurances of stability is the Energy Charter Treaty (ECT). Originally concluded in the aftermath of the Cold War to integrate the former Soviet Union's resource-rich energy sectors into the European market, the ECT now provides an international legal framework for energy cooperation, particularly in Europe.
The past decade saw a significantly increased level of investment, including foreign investment as a result of international initiatives on the development of alternative energy sources. Many countries have implemented government subsidies and support schemes to encourage investment in renewable energy. These measures were designed to favour renewable resources over continued use of fossil fuels and to account for the significant upfront expense associated with the new technologies.
Pending renewable energy arbitrations under the ECT
As the favourable subsidies and support schemes resulted in significant investment in renewables, and faced with a global financial crisis, many European countries scaled back their original investment incentives. At times, these changes resulted from those countries' obligations under EU law.
These regulatory changes, in turn, have sparked a considerable number of legal disputes, including investor–state arbitrations under the ECT. Spain, the Czech Republic and Italy in particular have found themselves facing disputes following changes in regulatory structures for energy investment. Arbitration claims brought under the ECT have focused on two protections: (1) the requirement that the host state extend fair and equitable treatment to foreign investors, and (2) the prohibition on expropriation.
For over a decade, Spain had laws subsidising new investments in wind energy, solar energy and waste incineration. The Spanish Promotion Plan for Renewable Energy, originally promulgated in 2000 and revised in 2005, provided for grants, tax incentives, soft loans and loan guarantees. These incentives attracted tens of billions of euros in investment in renewable energy assets from outside investors. 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. One incentive offered by Spain was a feed-in tariff, which permitted owners of renewable energy plants (particularly solar plants) to sell electricity at a higher rate for the first 25 years and at a reduced rate for the plant's remaining lifetime.
Beginning in 2008, the Spanish government began to reduce these incentives to address a significant 'tariff deficit' – the difference between the amounts collected from regulated feed-in tariffs and those collected from access tariffs set on the open market – as revenue from the state-subsidised prices failed to cover costs. By 2012, Spain had largely eliminated these incentives for new photovoltaic (solar) systems. The government also issued decrees imposing a tax on power generation.
In response, several groups of investors brought arbitration claims under the ECT. As of March 2019, foreign investors had filed over 30 arbitration claims against Spain at ICSID, with other cases pending before tribunals composed under the UNCITRAL or the Stockholm Chamber of Commerce (SCC) rules. In one of the longest-pending arbitrations – the PV Investors case – Spain allowed the claims made by investors in the photovoltaic (solar) sector to be heard by a single UNCITRAL arbitral tribunal. The PV Investors tribunal subsequently affirmed that it has jurisdiction over claims that Spain breached its obligations under the ECT – the first jurisdictional ruling in any of the renewable energy arbitrations brought against Spain.
In January 2016, in Charanne, another UNCITRAL tribunal rendered the first award in these disputes. As in the PV Investors case, the tribunal rejected Spain's jurisdictional objections. In a divided decision, however, the tribunal then dismissed the investors' claims on the merits, finding that Spain's actions did not constitute indirect expropriation or deprive investors of fair and equitable treatment. The decision only concerned Spain's modifications to its renewable energy investment regime enacted in 2010, and not the more significant changes enacted in 2013. The 2013 changes were at issue in three other proceedings: Eiser, Novenergia, and Isolux. In the Eiser arbitration, an ICSID tribunal, in May 2017, unanimously found that Spain had breached the obligation of fair and equitable treatment and awarded the investors €128 million. The same result followed in the Novenergia arbitration, where an SCC tribunal, in Feburary 2018, also found a violation of the ECT's guarantee of fair and equitable treatment. Spain, however, prevailed in the Isolux arbitration, where the tribunal found that the foreign investor, having begun to invest after the 2010 reforms, could not have had any legitimate expectation of further reform and so found no violation of fair and equitable treatment.
The Czech Republic
In 2005, the Czech Republic introduced a feed-in tariff for solar-generated electricity sold directly to electrical grid operators, guaranteeing that the tariff could not be decreased by more than 5 per cent a year. Subsequently, however, the Czech Republic sought to roll back the payments required under the tariff, and in 2010 imposed a retroactive levy on revenues from solar electricity, which was upheld by the Czech Constitutional Court. The Czech government then passed legislation authorising faster reductions in the tariff rate.
Foreign investors in the Czech photovoltaic power sector commenced several arbitration proceedings, arguing that the regulatory changes to the feed-in tariff violated the ECT and intra-EU bilateral investment treaties (BITs), and breached investors' legitimate expectations. In May 2013, a group of ten German, UK and Cypriot investors, led by Antaris Solar GmbH, commenced arbitration under the UNCITRAL rules, seeking damages in the range of €50 million to €70 million. Because the Czech Republic objected to a consolidated proceeding, the arbitration continued before six different tribunals, though with some overlap among arbitrators. A German energy company (JSW Solar) filed an additional arbitration in the latter half of 2013, also under the UNCITRAL rules. The claimants, however, alleged only violations of the Germany–Czech Republic BIT, and eschewed invoking the ECT, possibly because Article 21 of the ECT limits claims related to taxation measures. As of March 2019, five additional solar-related arbitrations have been filed.
In October 2017, the Czech Republic prevailed in the first announced arbitration award. In a divided decision, the UNCITRAL tribunal in the arbitration involving German investors Jürgen and Stefan Wirtgen, as well as their company JSW Solar, found that the Czech Republic's measures introduced in 2011 did not violate legitimate expectations and were reasonable, proportionate, and non-arbitrary. In May 2018 and May 2019, the Czech Republic also prevailed in five other arbitrations, four of which were decided by the same tribunal. By contrast, the Natland tribunal, in a 2017 partial award on jurisdiction and liability, found that the Czech Republic breached the ECT's fair and equitable treatment standard.
A feed-in tariff was similarly at the heart of Italy's support scheme for renewable energy sources. The tariff was originally enacted in 2003 by Legislative Decree No. 387/2003. The feed-in tariff contributed to a significant growth of the Italian renewable energy sector, and the photovoltaic market in particular.
The incentives system, however, was costly, and eventually became unaffordable. For instance, the three-year €6.7 billion scheme approved in June 2012 was completely exhausted by July 2013. That same year, Italy ceased to grant incentives to new plants. Moreover, in 2014, the Italian government adopted the 'spalma incentivi' ('incentive-spreading') decree, which retroactively mandated a reduction in the feed-in tariff for photovoltaic plants larger than 200kW. Investors were required to select one of the following new incentive regimes: (1) tariffs granted for 24 years instead of 20, but subject to gradual reductions throughout the term; (2) reduced incentives for the initial period of the investment, in exchange for higher incentives for the subsequent period on the basis of percentages established by the competent authority; or (3) an annual decrease in the incentives by 6 to 8 per cent (depending on the plants' peak power) for the remainder of the incentives' duration.
The Italian Constitutional Court upheld the changes to the incentive regime on 7 December 2016. The court rejected investors' arguments that the 2014 decree arbitrarily and unreasonably interfered with existing long-term contracts, in a breach of their legitimate expectations.
Like the Spanish and Czech cases, foreign investors in Italy's renewable energy sector challenged the changes to the investment incentive regime in arbitration under the ECT. The first arbitration began in 2014, and there are currently seven arbitrations filed against Italy at ICSID, with other cases pending before the SCC. In December 2016, the first award in these arbitrations – the Blusun ICSID arbitration – rejected the investor's claim against Italy. In that award, the tribunal concluded that Italy had not violated the guarantee of fair and equitable treatment or commit an indirect expropriation because it did not promise to investors that its regulatory framework would remain unchanged, and modified that framework in non-discriminatory ways. By contrast, the SCC tribunal in the Greentech Energy arbitration issued a divided decision in December 2018 finding a violation of the ECT based on a violation of the fair and equitable treatment standard and awarding damages to the investors.
On 31 December 2014, Italy announced its withdrawal from the ECT, effective 1 January 2016. Although the Italian government justified its decision by the desire to reduce the costs of participating in international organisations, the risk of further disputes under the ECT (and potential adverse decisions) may have influenced the withdrawal. Nevertheless, pursuant to the ECT's sunset clause in Article 47, the treaty's protections continue to apply to investments made before January 2016 for 20 years.
Key legal issues in the pending renewable energy arbitrations
The ECT offers a variety of broad protections to foreign investors in the energy sector. These are similar to protections typically found in BITs, such as fair and equitable treatment, constant protection and security, non-discrimination, most-favoured nation, fulfilment of commitments, prohibition against expropriation, and compensation of losses. While the renewable energy arbitrations brought under the ECT are generally confidential, several legal issues are likely to be central to these proceedings. These issues centre on the question of whether the regulatory and legislative changes to the renewable energy incentive regimes breached the ECT's guarantee of fair and equitable treatment or constituted an indirect expropriation.
Fair and equitable treatment and investors' reasonable expectations
Article 10(1) of the ECT contains one of the most frequent bases asserted in investor–state disputes – the fair and equitable treatment requirement (FET). Under Article 10(1), each ECT signatory promised to:
encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations.
The FET standard is 'one of the most actively debated concepts in investment protection law', and arbitral tribunals and commentators have offered varied constructions of its requirements. The FET requirement is part of most BITs and multilateral agreements (such as NAFTA), and has been addressed in many investor–state arbitration disputes.
The FET standard commonly contains the following requirements:
- the host state must act in a transparent manner;
- the state is obliged to act in good faith;
- the state's conduct cannot be arbitrary, grossly unfair, unjust, idiosyncratic, discriminatory, or lacking in due process; and
The analysis of whether FET standard has been violated focuses on whether the host state acted with consistency, transparency and reasonableness in modifying (or eliminating) the existing incentive regime, and, above all, whether investors had reasonable and legitimate expectations that were breached as a result of the state's actions. There is no universally applicable standard as to when investors' expectations deserve treaty protection under the FET requirement; any evaluation will depend on the facts.
There are two acknowledged approaches to determining when investor expectations are reasonable so as to warrant treaty protection. The first approach requires the host state to have made clear assurances to the investor regarding the specific business relationship. Under the second, more permissive approach, 'expectations could be created based on assurances provided in generally applicable laws of a country, and more generally, upon the existing framework at the time of the investment'. 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'. The tribunal in CMS v. Argentina – an influential decision with respect to determining when a change in the host nation's legal framework constitutes a breach of the FET – similarly observed that the stability and predictability of the legal and regulatory environment is an important component of fair and equitable treatment.
The FET analysis balances numerous considerations, including the host state's right to regulate, which may involve changing previous regulations, where necessary. As the tribunal in EDF (Services) Limited v. Romania noted, the FET requirement cannot mean 'the virtual freezing of the legal regulation of economic activities, in contrast with the State's normal regulatory power and the evolutionary character of economic life'. Accordingly, arbitral tribunals have emphasised, in rejecting claims based on an alleged breach of the FET: 'No investor may reasonably expect that the circumstances prevailing at the time the investment is made remain totally unchanged'. Rather, a determination 'whether frustration of the foreign investor's expectations was justified and reasonable' requires consideration of 'the Host State's legitimate right subsequently to regulate domestic matters in the public interest'.
A tribunal is more likely to find a breach of the FET requirement where the host state, implicitly or explicitly, made specific representations, commitments, assurances or promises on which the foreign investor relied in making the investment. Absent a specific commitment from the host state, an investor may face a steeper burden, especially when relying on 'legislation or regulation of a unilateral and general character'. 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. Unlike the France–Argentina BIT, which was at issue in Total, however, the ECT expressly references, in Article 10(1), the host state's duty to create 'stable' and 'transparent' conditions for foreign investments, as well as the 'commitment to accord at all times . . . fair and equitable treatment' to such investments, giving particular weight to long-term stability. As some commentators have suggested, this provision could serve as the basis for affording the legitimate expectations of investors operating in the energy field comparatively greater protection against regulatory changes.
A change in the host state's regulatory framework will not necessarily lead to a finding of a breach of the FET guarantee. Indeed, in Charanne – the first renewable energy arbitration that resulted in an award – the tribunal concluded that Spain did not breach its FET guarantee under the ECT. As the tribunal noted, 'in the absence of a specific commitment, an investor cannot have a legitimate expectation that existing rules will not be modified.' 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. 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.
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 feed-in tariffs, 'nor did it specifically undertake that relevant Italian laws would remain unchanged.' 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.'
In examining the ECT's guarantee of fair and equitable treatment, other tribunals, however, have arrived at a different conclusion when assessing whether investors had legitimate expectations in the immutability of the state's original incentive regime. Thus, the Antin, Novenergia, and Masdar tribunals concluded that Spain failed to comply with its obligation to create stable, favourable, and transparent conditions for foreign investors, and that investors had legitimate expectations that the existing investment regime would not be modified. These tribunals appeared to have based their conclusions regarding legitimate expectations on the reasonableness of those expectations, the investor's due diligence, and the specificity of the state's commitments regarding the investment. Despite the varying results, in arriving at their decisions, those tribunals generally examine the reasonableness of such expectations in light of the specificity of the state's commitments and the foreseeability that the existing regime may be altered.
Another legal issue likely involved in pending arbitrations concerning renewable energy incentive schemes is a claim of indirect expropriation. The ECT does not have a specific provision addressing indirect expropriation, but the treaty's Article 13 prohibits expropriation of investments unless 'justified by public interest purposes, carried out under due process of law and accompanied by a prompt, adequate and effective compensation.'
In Nykomb v. Latvia, the tribunal addressed claims of indirect expropriation under the ECT, and construed such expropriation narrowly. There, the investor entered into an agreement with the Latvian state energy distributor to produce energy from a cogeneration plant. According to the rules applicable at the time, the investor would have received a double tariff for eight years. Just before the plan commenced operation, Latvia revoked this favourable treatment and introduced retroactively a significantly lower tariff. 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'. The arbitral tribunal disagreed and concluded that the loss of the economic value of the investment did not, by itself, constitute expropriation, because the state did not take possession of the enterprise or its assets, or interfere with the shareholders' rights or management control.
The Charanne tribunal likewise rejected the investors' argument that Spain's modification of the incentive regime constituted indirect expropriation because it affected their returns for the investment. Adopting the standard articulated in such decisions as CMS and Electrabel (and other decisions 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.' The tribunal, however, observed that the investors' plant remained operational and profitable, and held that, 'although the profitability of [the plant] could have been seriously affected,' a reduction in profitability (and any resulting decrease in the value of the shares) in itself does not amount to indirect expropriation.
Although the Charanne tribunal rejected the expropriation claim, it adopted the broader definition of indirect expropriation applied by tribunals that addressed investors' claims under NAFTA and BITs, rather than the more narrow definition made in Nykomb. It therefore remains to be seen what approach other arbitral tribunals will adopt when determining whether the reductions of a feed-in tariff or, more broadly, the roll-back of the renewable energy investment incentive regimes, deprive investors of the use and benefit of their investment to such an extent to constitute an indirect expropriation under the ECT. As the Charanne award indicates, such decisions will likely examine closely the specific facts and circumstances of each case. As with the question of whether a state's action constitutes a breach of the FET obligation, these tribunals are also likely to balance protection of investors' expectations with the state's right to change the legal framework and pursue new policies. This analysis can lead arbitrators to different conclusions, as illustrated by the contrasting 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.' 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.
The European Commission's role in ECT renewable energy arbitrations
A final issue of note is the European Commission's participation as amicus curiae in renewable energy arbitrations under the ECT. The Commission's participation raises several complex issues regarding the interaction between the ECT and EU law, including possible defences based on EU state-aid rules or jurisdictional objections to intra-EU investor disputes.
The Commission's first involvement as amicus curiae in an ECT arbitration came in Electrabel, where the tribunal permitted it to participate to discuss the relationship between EU law and the ECT. 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'. Since Charanne, the Commission sought to submit amicus briefs in some of the pending renewable energy arbitrations in Spain; however, the tribunals rejected those requests, viewing the Commission's participation as premature (but leaving open the possibility of the Commission's participation in future stages of the proceedings). The Commission similarly has sought to participate in some of the Czech renewable energy arbitrations.
The Commission's involvement implicates two substantive issues. The first involves a possible defence by the host state against investors' claims based on EU rules on state aid. Thus, in the Czech cases, the Commission reportedly has taken the position that EU law may prohibit some of the original solar investment incentives the Czech Republic offered to investors, and therefore required their elimination. Such arguments would be consistent with the position that the Commission adopted in prior ECT arbitrations. Thus, in Electrabel, it argued that Hungary did not breach its treaty obligations because the changes to Hungary's regulatory regime were created to comply with EU law.
The second issue is whether, given the Commission's position that the ECT does not apply to intra-EU disputes, the treaty permits arbitrations between EU-based investors and EU member states. The Charanne tribunal, for instance, rejected the Commission's (and Spain's) argument that the EU's status as a signatory of the ECT destroyed Article 26's diversity-of-nationality requirement. The tribunal stressed that the EU's status as a party to the ECT does not mean that EU member states 'ceased to be' parties to the ECT as well. Applying a contextual inquiry, the tribunal observed that the asserted claims were 'not based on EU actions,' but on those of Spain, and were directed against Spain, and not the EU.
In the Czech renewable energy arbitrations, the Commission reportedly argued that, while the ECT does not contain an explicit disconnection clause that would render it inapplicable in intra-EU disputes, such restriction should be inferred from the treaty's context, purpose and drafting history. In 1998, in a statement submitted to the Secretariat of the Energy Charter, the Commission invoked the ECT's Article 26(3)(b)(ii) (which provides for the possibility of a partial disconnection clause) to argue that the Commission has not assented to arbitration under the ECT with regard to any case brought by EU nationals because (the Commission stated) 'the Communities' legal system provides for means' of resolving such disputes. 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.
A critical intervening development was the Achmea decision, issued in March 2018 by the European Court of Justice (ECJ), which held that the investor-state arbitration mechanism in a bilateral investment treaty between two EU members was incompatible with EU law. In the aftermath of that decision, 22 EU member states issued a declaration in January 2019 stating that Achmea decision applies to intra-EU investor-state cases under the ECT. Five other EU member states, however, issued a separate declaration observing that the ECJ's decision was silent on the matter.
At least four arbitral tribunals in solar energy arbitrations, moreover, have concluded that, notwithstanding the Achmea decision, EU law does not divest the arbitral tribunals of jurisdiction over intra-EU disputes brought under the ECT. A Swedish court, however, has stayed the enforcement of some of these decisions as it considers whether to consult the ECJ on the scope of Achmea and the ECT's compatibility with EU law. It is possible, therefore, that the ECJ will address directly whether EU nationals remain eligible to bring international arbitration claims under the ECT against other member states.
As discussed above, the arbitral tribunals in the pending renewable energy claims have little direct precedent to examine under the ECT, and will seek guidance in decisions rendered in other investor–state investment disputes. The Charanne decision – the first award rendered in these arbitrations – appropriately relied to a significant extent on the general principles of fair and equal treatment and the prohibition against indirect expropriation elaborated by international arbitral tribunals. As further renewable energy disputes progress to their resolution, these arbitrations will further define the parameters of the host states' regulatory powers with respect to renewable energy investments, as well as the intersection of the ECT with EU law.
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