Of all fossil fuels, coal has the greatest climate impact. However, sovereign decisions to phase out coal inevitably affect the investment of coal power plant operators, frequently leading to disputes concerning compensation for lost profits.
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.
Side-stepping national courts would be a big step backwards for Europe: A reaction to the EC’s public consultation on EU cross-border investment.
The European Commission has launched a public consultation initiative on the EU’s current system of investment protection and facilitation, prompted by the recent termination of BITs between the member states. In this piece, the authors caution that new forms of international investment protection are not necessary and could serve to undermine the legitimacy of the EU.
European Commission initiates infringement proceedings against the UK and Finland for failing to terminate intra-EU BITs
On May 14, 2020 the EC initiated infringement proceedings against the UK and Finland for failing to terminate the intra-EU BITs to which they are a party. Though the UK has formally left the European Union, EU law continues to apply to the UK during the transition period, which ends on December 31, 2020.
As we reported, the EC launched a consultation to clarify and supplement rules on cross-border investment within the EU in May 2020.
A long-simmering row over plans for two new pipelines that would carry natural gas from Russia into Germany has advanced quickly in recent months, after gas company Nord Stream 2 submitted a notice of arbitration against the EU under the ECT on September 26, 2019.
United Utilities (Tallinn) BV and Aktsiaselts Tallinna Vesi v. Republic of Estonia, ICSID Case No. ARB/14/24
Twenty-two EU member states endorsed a political declaration on January 15, 2019, where they announced a series of actions involving existing intra-EU BITs and upcoming or ongoing investment arbitration.
GREENTECH ENERGY SYSTEMS A/S & ORS. V. THE ITALIAN REPUBLIC, SCC ARBITRATION V (2015/095)
MARFIN INVESTMENT GROUP HOLDINGS S.A., ALEXANDROS BAKATSELOS AND OTHERS V. REPUBLIC OF CYPRUS, ICSID CASE NO. ARB/13/27
TOMASZ CZĘŚCIK AND ROBERT ALEKSANDROWICZ V. CYPRUS, SCC CASE NO. V 2014/169
FORESIGHT LUXEMBOURG SOLAR 1 S.À.R.L., FORESIGHT LUXEMBOURG SOLAR 2 S.À.R.L., GREENTECH ENERGY SYSTEMS A/S, GWM RENEWABLE ENERGY I S.P.A. AND GWM RENEWABLE ENERGY II S.P.A. V. THE KINGDOM OF SPAIN, SCC ARBITRATION V (2015/150)
UP AND C.D. HOLDING INTERNATIONALE V. HUNGARY, ICSID CASE NO. ARB/13/35
ICSID tribunal accepts jurisdiction over investor’s claim under United Kingdom–Czechia BIT but rules in favour of Czechia
A11Y LTD V. CZECH REPUBLIC, ICSID CASE NO. UNCT/15/1
European Commission communication on protection of intra-EU investment rejects ECT as a basis for intra-EU ISDS
On July 19, 2018, the European Commission (EC) published a communication to the European Parliament and the Council of the European Union (EU) titled Protection of Intra-EU Investment.
MASDAR SOLAR & WIND COOPERATIEF U.A. V. THE KINGDOM OF SPAIN, ICSID CASE NO. ARB/14/1
Luxembourg fund awarded EUR 53.3 million for FET breach arising out of Spain’s curtailment of renewable energy incentive schemes
NOVENERGIA II – ENERGY & ENVIRONMENT (SCA) (GRAND DUCHY OF LUXEMBOURG), SICAR V. THE KINGDOM OF SPAIN, SCC CASE NO. 063/2015
Current and future investment treaties and chapters involving EU member states or the Union itself may be profoundly impacted by a landmark ruling of the European Court of Justice (ECJ). In this piece, the author explores the judgement from an EU constitutional point of view and analyzes potential consequences. Did the Achmea ruling come as a surprise to EU law insiders?
On July 31, 2017 the European Commission launched a consultation on the prevention and amicable resolution of disputes between investors and public authorities within the European Union.
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/36
WNC v. Czechia: tribunal dismisses expropriation claim and determines that it has no jurisdiction over all other claims
WNC Factoring Limited v. The Czech Republic, PCA Case No. 2014-34
On June 18, 2015, the European Commission initiated infringement proceedings against Austria, the Netherlands, Romania, Slovakia and Sweden, formally requesting them to terminate their bilateral investment treaties (BITs) with other EU Member States.
European Court of Justice rules that certain Swedish and Austrian BITs are incompatible with the EC Treaty
The European Court of Justice (ECJ) has ruled that certain clauses in Sweden and Austria’s bilateral investment treaties are incompatible with the European Community (EC) Treaty.