Overview

Based on analysis of 21 arbitral awards rendered in the “Spanish saga” cases, this book discusses the current challenges faced by international investment law in the renewable energy sector, addressing questions such as which facts led to the unprecedented number of investor-state arbitrations filed against Spain, whether arbitral awards rendered against Spain have an impact on future proceedings commenced against other states, and which legal grounds in international law serve, or may potentially serve, as the basis for investors’ claims in the renewable energy sector. Filip Balcerzak offers critical insight into generally applicable lessons for the future—both for adjudicators of renewable energy disputes and for policy-makers.

Full Product Details

Author:   Filip Balcerzak
Publisher:   Brill
Imprint:   Martinus Nijhoff
Volume:   23
Weight:   0.966kg
ISBN:  

9789004509337

ISBN 10:   900450933
Pages:   492
Publication Date:   30 March 2023
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Hardback
Publisher's Status:   Active
Availability:   In Print  
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Table of Contents

Acknowledgments List of Tables List of Abbreviations 1 Introduction 2 Facts  1 Introduction  2 RE Technologies Relevant to the Spanish Saga  3 European Context  4 Relevant Domestic Regulatory Framework  5 2010 Disputed Measures  6 2012 Disputed Measures  7 2013–2014 Disputed Measures  8 2019 Measures  9 Spanish Domestic Courts’ Judgments  10 Cases   10.1 Charanne   10.2 Isolux   10.3 Eiser   10.4 Novenergia   10.5 Masdar   10.6 Antin   10.7 Foresight   10.8 RREEF   10.9 Cube   10.10 NextEra   10.11 9REN   10.12 SolEs   10.13 InfraRed   10.14 OperaFund   10.15 BayWa   10.16 Stadtwerke   10.17 RWE   10.18 Watkins   10.19 PV Investors   10.20 Hydro   10.21 Cavalum  11 Conclusions 3 Jurisdiction  1 Intra-EU Objection   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 PV Investors    1.2.2 Charanne    1.2.3 RREEF    1.2.4 Isolux    1.2.5 Eiser    1.2.6 Novenergia    1.2.7 Masdar    1.2.8 Antin    1.2.9 Foresight    1.2.10 Cube    1.2.11 NextEra    1.2.12 9REN    1.2.13 SolEs    1.2.14 InfraRed    1.2.15 OperaFund    1.2.16 BayWa    1.2.17 Stadtwerke    1.2.18 RWE    1.2.19 Watkins    1.2.20 Hydro    1.2.21 Cavalum   1.3 Lessons Learned    1.3.1 First Lesson Learned – the Spanish Saga Cases Were an Important Contribution to the Factual Matrix Which Led to the 2021 Komstroy Judgment    1.3.2 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 Time    1.3.3 Third Lesson Learned – the Differences between ICSID and Non-ICSID Arbitrations have Become More Important Than Ever Before    1.3.4 Fourth Lesson Learned – the Nature of the Intra- EU Objection Can Be Classified as Rationae Personae  2 Tax Carve-Out Objection   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 PV Investors    2.2.2 Charanne    2.2.3 RREEF    2.2.4 Isolux    2.2.5 Eiser    2.2.6 Novenergia    2.2.7 Masdar    2.2.8 Antin    2.2.9 Foresight    2.2.10 Cube    2.2.11 NextEra    2.2.12 9REN    2.2.14 InfraRed    2.2.15 OperaFund    2.2.16 BayWa    2.2.17 Stadtwerke    2.2.18 RWE    2.2.19 Watkins    2.2.20 Hydro   2.3 Lessons Learned    2.3.1 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 Prerequisites    2.3.2 Second Lesson Learned – Tax Carve-Out Clauses Do Not Apply to Mala Fide Measures 4 Liability  1 Fair and Equitable Treatment   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 Charanne    1.2.2 Charanne – Dissenting Opinion    1.2.3 Isolux    1.2.4 Isolux – Dissenting Opinion    1.2.5 Eiser    1.2.6 Novenergia    1.2.7 Masdar    1.2.8 Antin    1.2.9 Foresight    1.2.10 Foresight – Dissenting Opinion    1.2.11 RREEF    1.2.12 RREEF – Dissenting Opinion    1.2.13 Cube    1.2.14 Cube – Dissenting Opinion    1.2.15 NextEra    1.2.16 9REN    1.2.17 SolEs    1.2.18 InfraRed    1.2.19 OperaFund    1.2.20 OperaFund – Dissenting Opinion    1.2.21 BayWa    1.2.22 BayWa - Dissenting Opinion    1.2.23 Stadtwerke    1.2.24 Stadtwerke – Dissenting Opinion    1.2.25 RWE    1.2.26 RWE – Dissenting Opinion    1.2.27 Watkins    1.2.28 Watkins – Dissenting Opinion    1.2.29 PV Investors    1.2.30 PV Investors – Dissenting Opinion    1.2.31 Hydro    1.2.32 Cavalum    1.2.33 Cavalum – Dissenting Opinion   1.3 Lessons Learned    1.3.1 First Lesson Learned – Regulatory Frameworks Can Create Legitimate Expectations That Are Protected by International Investment Treaties    1.3.2 Second Lesson Learned – the Content of Domestic Law Is Crucial to Determine the Scope of Legitimate Expectations Based on a Regulatory Framework    1.3.3 Third Lesson Learned – Legal Due Diligence Is Essential to Ensuring the Existence of Legitimate Expectations to Regulatory Stability in Highly Regulated Sectors    1.3.4 Fourth Lesson Learned – the Sovereign Right to Regulate Has Its Limits, Which Is Related to the Rule of Law    1.3.5 Fifth Lesson Learned – the FET Involves a Balancing Exercise    1.3.6 Sixth Lesson Learned – Contractual Obligations Can Be Game Changers  2 Expropriation   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 Charanne    2.2.2 Isolux    2.2.3 Eiser    2.2.4 Novenergia    2.2.5 Foresight    2.2.6 Cube    2.2.7 9REN    2.2.8 SolEs    2.2.9 InfraRed    2.2.10 BayWa    2.2.11 Hydro    2.2.12 Cavalum    2.3 Lessons Learned    2.3.1 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 Measures    2.3.2 Second Lesson Learned – General Regulatory Measures Can Result in Indirect Expropriation  3 Umbrella Clause   3.1 General Comments   3.2 Spanish Saga Case Law    3.2.1 Isolux    3.2.2 Eiser    3.2.3 Novenergia    3.2.4 Masdar    3.2.5 Antin    3.2.6 Foresight    3.2.7 RREEF    3.2.8 Cube    3.2.9 NextEra    3.2.10 9REN    3.2.11 SolEs    3.2.12 InfraRed    3.2.13 OperaFund    3.2.14 BayWa    3.2.15 Stadtwerke    3.2.16 RWE    3.2.17 Watkins    3.2.18 Cavalum   3.3 Lessons Learned    3.3.1 First Lesson Learned – General Legislation, Directed at a Broad Class of Addressees, Falls outside the Scope of the Umbrella Clause    3.3.2 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 State 5 Remedies  1 Restitution   1.1 General Comments   1.2 Spanish Saga Case Law    1.2.1 Charanne and Isolux    1.2.2 Eiser    1.2.3 Novenergia    1.2.4 Masdar    1.2.5 Antin    1.2.6 Foresight    1.2.7 RREEF    1.2.8 Cube    1.2.9 NextEra    1.2.10 9REN    1.2.11 SolEs    1.2.12 InfraRed    1.2.13 OperaFund    1.2.14 BayWa    1.2.15 Stadtwerke    1.2.16 RWE    1.2.17 Watkins    1.2.18 PV Investors    1.2.19 Hydro    1.2.20 Cavalum   1.3 Lessons Learned    1.3.1 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 Autonomy    1.3.2 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 Sovereignty  2 Compensation   2.1 General Comments   2.2 Spanish Saga Case Law    2.2.1 Charanne and Isolux    2.2.2 Eiser    2.2.3 Novenergia    2.2.4 Masdar    2.2.5 Antin    2.2.6 Foresight    2.2.7 RREEF    2.2.8 RREEF – Dissenting Opinion    2.2.9 Cube    2.2.10 NextEra    2.2.11 9REN    2.2.12 SolEs    2.2.13 InfraRedMethodology and Calculations    2.2.14 OperaFund    2.2.15 BayWa    2.2.16 Stadtwerke    2.2.17 RWE    2.2.18 Watkins    2.2.19 PV Investors    2.2.20 Hydro    2.2.21 Cavalum   2.3 Lessons Learned    2.3.1 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 Sectors    2.3.2 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 Experts    2.3.3 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 Violated 6 Conclusions Bibliography   Books and Reports   Articles and Book Chapters   Arbitral Documents (Awards, Decisions, Opinions, etc.)   Judgments and Opinions of the International Court of Justice and the Permanent Court of International Justice   Judgments and Opinions of the Court of Justice of the European Union and Its Predecessor   International Treaties   Spanish legislation   Spanish courts’ judgments   Other sources Index

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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.

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