Renewable Energy Arbitration - Quo Vadis?: Implications of the Spanish Saga for International Investment Law

Contents
Acknowledgments
Tables
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 Thre
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
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 Operativ
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 InfraRed
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 Sh
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
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