Renewable Energy Arbitration – Quo Vadis?

Filip Balcerzak, Ph.D. (2016), LL.M. (2011), is an Associate Professor at the Faculty of Law and Administration of Adam Mickiewicz University in Poznań, Poland. He is also an arbitrator, attorney at law (Poland and Spain) and a partner at SSW Pragmatic Solutions.

• AcknowledgmentsList of TablesList of Abbreviations1 Introduction2 Facts1 Introduction2 RE Technologies Relevant to the Spanish Saga3 European Context4 Relevant Domestic Regulatory Framework5 2010 Disputed Measures6 2012 Disputed Measures7 2013–2014 Disputed Measures8 2019 Measures9 Spanish Domestic Courts’ Judgments10 Cases10.1 Charanne10.2 Isolux10.3 Eiser10.4 Novenergia10.5 Masdar10.6 Antin10.7 Foresight10.8 RREEF10.9 Cube10.10 NextEra10.11 9REN10.12 SolEs10.13 InfraRed10.14 OperaFund10.15 BayWa10.16 Stadtwerke10.17 RWE10.18 Watkins10.19 PV Investors10.20 Hydro10.21 Cavalum11 Conclusions3 Jurisdiction1 Intra-EU Objection1.1 General Comments1.2 Spanish Saga Case Law1.2.1 PV Investors1.2.2 Charanne1.2.3 RREEF1.2.4 Isolux1.2.5 Eiser1.2.6 Novenergia1.2.7 Masdar1.2.8 Antin1.2.9 Foresight1.2.10 Cube1.2.11 NextEra1.2.12 9REN1.2.13 SolEs1.2.14 InfraRed1.2.15 OperaFund1.2.16 BayWa1.2.17 Stadtwerke1.2.18 RWE1.2.19 Watkins1.2.20 Hydro1.2.21 Cavalum1.3 Lessons Learned1.3.1 First Lesson Learned – the Spanish Saga Cases Were an Important Contribution to the Factual Matrix Which Led to the 2021 Komstroy Judgment1.3.2 Second Lesson Learned – the Tensions between EU Law and Protection under the ECT Are Far from Being Resolved in a Final Manner, and the Main Points of the Debate Have Evolved over Time1.3.3 Third Lesson Learned – the Differences between ICSID and Non-ICSID Arbitrations have Become More Important Than Ever Before1.3.4 Fourth Lesson Learned – the Nature of the Intra- EU Objection Can Be Classified as Rationae Personae2 Tax Carve-Out Objection2.1 General Comments2.2 Spanish Saga Case Law2.2.1 PV Investors2.2.2 Charanne2.2.3 RREEF2.2.4 Isolux2.2.5 Eiser2.2.6 Novenergia2.2.7 Masdar2.2.8 Antin2.2.9 Foresight2.2.10 Cube2.2.11 NextEra2.2.12 9REN2.2.14 InfraRed2.2.15 OperaFund2.2.16 BayWa2.2.17 Stadtwerke2.2.18 RWE2.2.19 Watkins2.2.20 Hydro2.3 Lessons Learned2.3.1 First Lesson Learned – Arbitral Tribunals Not Only Can, but Must, Commence Their Analysis by Looking beyond the “Label” of a Tax, to Decide Whether a Disputed Measure Fulfils CIL’s Prerequisites2.3.2 Second Lesson Learned – Tax Carve-Out Clauses Do Not Apply to Mala Fide Measures4 Liability1 Fair and Equitable Treatment1.1 General Comments1.2 Spanish Saga Case Law1.2.1 Charanne1.2.2 Charanne – Dissenting Opinion1.2.3 Isolux1.2.4 Isolux – Dissenting Opinion1.2.5 Eiser1.2.6 Novenergia1.2.7 Masdar1.2.8 Antin1.2.9 Foresight1.2.10 Foresight – Dissenting Opinion1.2.11 RREEF1.2.12 RREEF – Dissenting Opinion1.2.13 Cube1.2.14 Cube – Dissenting Opinion1.2.15 NextEra1.2.16 9REN1.2.17 SolEs1.2.18 InfraRed1.2.19 OperaFund1.2.20 OperaFund – Dissenting Opinion1.2.21 BayWa1.2.22 BayWa - Dissenting Opinion1.2.23 Stadtwerke1.2.24 Stadtwerke – Dissenting Opinion1.2.25 RWE1.2.26 RWE – Dissenting Opinion1.2.27 Watkins1.2.28 Watkins – Dissenting Opinion1.2.29 PV Investors1.2.30 PV Investors – Dissenting Opinion1.2.31 Hydro1.2.32 Cavalum1.2.33 Cavalum – Dissenting Opinion1.3 Lessons Learned1.3.1 First Lesson Learned – Regulatory Frameworks Can Create Legitimate Expectations That Are Protected by International Investment Treaties1.3.2 Second Lesson Learned – the Content of Domestic Law Is Crucial to Determine the Scope of Legitimate Expectations Based on a Regulatory Framework1.3.3 Third Lesson Learned – Legal Due Diligence Is Essential to Ensuring the Existence of Legitimate Expectations to Regulatory Stability in Highly Regulated Sectors1.3.4 Fourth Lesson Learned – the Sovereign Right to Regulate Has Its Limits, Which Is Related to the Rule of Law1.3.5 Fifth Lesson Learned – the FET Involves a Balancing Exercise1.3.6 Sixth Lesson Learned – Contractual Obligations Can Be Game Changers2 Expropriation2.1 General Comments2.2 Spanish Saga Case Law2.2.1 Charanne2.2.2 Isolux2.2.3 Eiser2.2.4 Novenergia2.2.5 Foresight2.2.6 Cube2.2.7 9REN2.2.8 SolEs2.2.9 InfraRed2.2.10 BayWa2.2.11 Hydro2.2.12 Cavalum2.3 Lessons Learned2.3.1 First Lesson Learned – the Impact of the State’s Measures on Attributes of Ownership and/or Control Are Relevant Factors in Assessing Whether a Substantial Deprivation Occurred, and Continued Ownership and/or Control of Investments Elevates the Threshold to Be Met by the Economic Impact of the Disputed Measures2.3.2 Second Lesson Learned – General Regulatory Measures Can Result in Indirect Expropriation3 Umbrella Clause3.1 General Comments3.2 Spanish Saga Case Law3.2.1 Isolux3.2.2 Eiser3.2.3 Novenergia3.2.4 Masdar3.2.5 Antin3.2.6 Foresight3.2.7 RREEF3.2.8 Cube3.2.9 NextEra3.2.10 9REN3.2.11 SolEs3.2.12 InfraRed3.2.13 OperaFund3.2.14 BayWa3.2.15 Stadtwerke3.2.16 RWE3.2.17 Watkins3.2.18 Cavalum3.3 Lessons Learned3.3.1 First Lesson Learned – General Legislation, Directed at a Broad Class of Addressees, Falls outside the Scope of the Umbrella Clause3.3.2 Second Lesson Learned – the Umbrella Clause May Apply Provided That a PPA Is Concluded between the Investor and an Agency Whose Actions Are Attributable to the State5 Remedies1 Restitution1.1 General Comments1.2 Spanish Saga Case Law1.2.1 Charanne and Isolux1.2.2 Eiser1.2.3 Novenergia1.2.4 Masdar1.2.5 Antin1.2.6 Foresight1.2.7 RREEF1.2.8 Cube1.2.9 NextEra1.2.10 9REN1.2.11 SolEs1.2.12 InfraRed1.2.13 OperaFund1.2.14 BayWa1.2.15 Stadtwerke1.2.16 RWE1.2.17 Watkins1.2.18 PV Investors1.2.19 Hydro1.2.20 Cavalum1.3 Lessons Learned1.3.1 First Lesson Learned – Restitution May Be Awarded in Investor-State Arbitrations, Although It Is Inappropriate in cases concerning Violations of Investment Treaties Caused by Regulatory Changes, Given the Disproportionate Impact on a Sovereign State’s Legislative Autonomy1.3.2 Second Lesson Learned – If Restitution Is Awarded, Art. 26(8) ECT Requires to Enable the Respondent to “Pay Monetary Damages in Lieu of” Restitution. It Is Recommended That, Even outside the ECT Context, Similar Reservations Are Made in the Operative Parts of Arbitral Awards in Order to Respect State Sovereignty2 Compensation2.1 General Comments2.2 Spanish Saga Case Law2.2.1 Charanne and Isolux2.2.2 Eiser 2.2.3 Novenergia2.2.4 Masdar2.2.5 Antin2.2.6 Foresight2.2.7 RREEF2.2.8 RREEF – Dissenting Opinion2.2.9 Cube2.2.10 NextEra2.2.11 9REN2.2.12 SolEs2.2.13 InfraRedMethodology and Calculations2.2.14 OperaFund2.2.15 BayWa2.2.16 Stadtwerke2.2.17 RWE2.2.18 Watkins2.2.19 PV Investors2.2.20 Hydro2.2.21 Cavalum2.3 Lessons Learned2.3.1 First Lesson Learned – DCF Is the Most Common Valuation Method Applied in Disputes concerning the RE Sector. The Highly Regulated Nature of the RE Sector Enables the DCF to Be Applied to Assess Compensation Even regarding Investments Which Have a Shorter Operating Track Record Than Would Be Required in Other Sectors2.3.2 Second Lesson Learned – Arbitration Provides Flexibility regarding the Procedure to Be Used, Which Allows Tribunals to Request Calculations to Be Prepared Jointly by the Parties’ Appointed Experts2.3.3 Third Lesson Learned – Claimants May Request a Tax Gross-Up, but They Face a High Evidentiary Threshold to Prove That a Specific Tax Will Apply and That It Is More Burdensome Than the Tax Which Would Have Applied (in the But-for Scenario) to Profits Which Would Have Been Obtained If the Treaty Had Not Been Violated6 ConclusionsBibliographyBooks and ReportsArticles and Book ChaptersArbitral Documents (Awards, Decisions, Opinions, etc.)Judgments and Opinions of the International Court of Justice and the Permanent Court of International JusticeJudgments and Opinions of the Court of Justice of the European Union and Its PredecessorInternational TreatiesSpanish legislationSpanish courts’ judgmentsOther sourcesIndex