Awards  |  December 20, 2021

Spain held liable in another renewable energy case and ordered to pay EUR 22 million in compensation for damages

BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16 In a final award, dated January 25, 2021, an ICSID tribunal ordered Spain to pay damages to German investors in compensation for the clawback of a subsidy regime. Although the bulk of  investor’s primary claims under the ECT […]

News  |  December 18, 2021

ECT modernization negotiations continue while agreement attracts criticism for impact on climate

Since our last report, two more negotiation rounds have taken place on ECT modernization. The seventh round took place from October 28–November 1, 2021, while the eighth round was held from November 9–11, 2021. During both rounds, the modernization group discussed issues related to investor–state dispute settlement, including frivolous claims, security for costs, third-party funding, […]

Reform or withdrawal from the ECT: What does it mean for coal?

With negotiators preparing for the seventh round of ECT modernization talks, and no signs of tangible progress, the continued emergence of new investor-state disputes under the controversial agreement has highlighted the risks the treaty poses for states as they phase out fossil fuels.  Of all fossil fuels, coal has the greatest climate impact, and UN […]

Despite consensus on the ECT’s incompatibility with the global climate agenda, claims that it is well-suited for the clean energy transition persist

There is scientific consensus that in order to limit global warming as defined in the Paris Agreement states must swiftly phase out fossil fuels and transition to low-carbon energy systems.[1] However, given the continued dependency of economies on fossil fuels, such phase-outs and the pursuit of a clean energy transition at a global scale are […]

News  |  October 8, 2021

ECT modernization negotiations continue with two rounds over the summer as opposition mounts

Since we last reported on the process, there have been two virtual negotiation rounds on ECT modernization, taking place in the midst of increased civil society opposition to the agreement, particularly within the EU.

Energy Charter Treaty Reform: Why withdrawal is an option

Introduction[1] The Energy Charter Treaty (ECT) faces criticism for its outdated investment provisions and the threats it poses to the energy transition. ISDS claims brought pursuant to the ECT by fossil fuel investors demonstrate that these threats are imminent and real. Moreover, they are likely to increase as governments take more ambitious climate action. Most […]

News  |  June 24, 2021

European Energy Disputes Update

As we reported, German-owned energy company Uniper put the Netherlands on notice of an investment dispute last year, following the announcement of the country’s plan to phase out coal-burning power plants by 2030. Alongside RWE, another German energy company, Uniper made good on that threat earlier this year; both companies initiated ICSID claims lodged under the ECT this spring.

The uncertain future of the Energy Charter Treaty: Belgium asks the European Court of Justice to rule on the compatibility of the modernized ECT with EU law

The relationship between the ECT and EU law is characterized by complexity and legal uncertainty, especially as far Article 26, the ECT’s dispute settlement mechanism and its application in an intra-EU setting is concerned. This article examines the question of whether the Achmea judgment’s finding on the incompatibility of intra-EU investment arbitration under BITs also affects the dispute settlement mechanism under the ECT

News  |  March 23, 2021

Progress report on ECT modernization negotiations indicates familiar divisions among delegations as push for EU withdrawal grows

Following three negotiation rounds on ECT modernization last year, the most recent of which concluded on November 6, 2020, a leaked progress report from December 2020 suggests that state parties are still divided on key issues. This makes progress in negotiations, which require consensus from the national delegations, difficult to come by.

News  |  December 19, 2020

EC suggests withdrawal is a possibility as Energy Charter Treaty modernization negotiations continue

On December 2, 2020, in an answer to questions submitted by MEPs, the EC suggested that the EU could exit the ECT.

News  |  September 19, 2019

Energy Charter Treaty: EU Council endorses negotiating directives for Brussels

The European Council has approved negotiating directives for the EU’s participation in talks to modernize the ECT, confirming its decision during a meeting on July 2, 2019.

Awards  |  September 19, 2019

Spain held liable for breach of FET under the ECT for frustrating legitimate expectations of 9REN, a Luxembourg-based renewable energy investor

9REN Holding S.À.R.L. v. The Kingdom of Spain, ICSID Case No. ARB/15/15

Awards  |  September 19, 2019

Spain is ordered to pay damages of EUR 290.6 million in NextEra renewable energy case

NextEra Energy Global Holdings B.V and NextEra Energy Spain Holdings B.V v. Kingdom of Spain, ICSID Case No. ARB/14/11

Awards  |  September 19, 2019

In yet another solar energy incentives case against Italy, ECT tribunal applying proportionality test finds breach of legitimate expectations

CEF Energia B.V. v. The Italian Republic, SCC Arbitration V (2015/158)