The EU released a proposal for the modernization of the ECT on May 27, 2020. This latest draft of the EU’s proposal includes changes to the treaty’s definition of investment, an affirmation of parties’ right to regulate, a narrower definition of FET, and reference to a multilateral investment court. The proposal also suggests several additional articles on sustainable development, frivolous claims, security for costs, interventions by third parties, third-party funding, and valuation of damages.
The negotiations for ECT modernization are now underway, with the first such meetings held in December 2019 and at least four other sessions planned over 2020.
In a new ICSID award, Spain’s reforms of the renewable energy sector are found not to violate the ECT
Stadtwerke München GmbH, RWE Innogy GmbH, and others v. Kingdom of Spain, ICSID Case No. ARB/15/1
There are several efforts underway at multiple levels—national, bilateral, regional and multilateral—aimed at reforming the IIA regime. These reform efforts are operating in parallel to developments in other areas of international investment governance, some of which have advanced quickly over the past year, including the structured discussions on investment facilitation at the WTO, as well as efforts in the UN context to craft a binding treaty on business and human rights. This year’s UNCTAD High-Level IIA Conference assessed the progress made to date since launching UNCTAD’s 10 Options for Phase 2 of IIA Reform, looking at trends across multiple areas of international investment governance, as well as across world regions. This ITN Insight summarizes the key takeaways from the 2019 event and considerations for Phase 2 going forward.
On November 6, 2019, the Energy Charter Conference confirmed that it would hold the first session of its “Modernization Group” on December 12, 2019, kicking off the process to revise the decades-old ECT.
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.
Belenergia S.A. v. Italian Republic, ICSID Case No. ARB/15/40
In yet another renewable energy case, Spain held liable for FET breach for frustrating French and Luxembourger investors’ legitimate expectations under the ECT
Cube Infrastructure Fund SICAV and Others v. The Kingdom of Spain, ICSID Case No. ARB/15/20
Negotiations for modernizing the Energy Charter Treaty, a 1994 agreement covering trade, investment and other aspects of the energy sector among its contracting parties, are expected to begin before 2019 draws to a close. Yet given the need identified in myriad other forums to reform ISDS and to ensure trade and investment agreements can support ambitious climate action, why aren’t more officials and commentators discussing the possibility of terminating the ECT entirely, or of reconsidering its survival clause for those parties which choose to withdraw? Tania Voon explores the issue and outlines options going forward.
Spain has faced approximately 40 arbitrations since it made the decision in 2010 to rescind or revise various regulatory measures aimed at drawing in greater investments into renewable energy projects. This article examines the awards issued in four of those cases, looking in particular at how the tribunals interpreted and applied the FET standard. The author looks at the potential problems that can emerge when states are unsure of how any given tribunal may interpret FET or other key standards and presents some potential solutions.
The Energy Charter Treaty modernization negotiations are due to begin later this year and a set of topics for parties to consider has already been announced. This piece examines the prospects for updating the ECT’s existing formulation of FET and analyzes how this standard has been interpreted in past arbitrations involving renewable energy disputes. The author argues in favour of including a requirement of investor due diligence as an attempt to help ensure that investors anticipate possible risks that may emerge from changes to a state’s regulatory framework.
The EC released on May 14 a set of draft negotiating directives setting out its proposed approach in “modernizing” the Energy Charter Treaty (ECT).
ICSID tribunal finds Spain breached ECT obligations by failing to provide a reasonable rate of return
RREEF INFRASTRUCTURE (G.P.) LIMITED AND RREEF PAN-EUROPEAN INFRASTRUCTURE TWO LUX S.A R.L. V. KINGDOM OF SPAIN, ICSID CASE NO. ARB/13/30
Investors’ legitimate expectation claims against Italy dismissed due to the absence of specific commitments
BLUSUN S.A., JEAN-PIERRE LECORCIER AND MICHAEL STEIN V. ITALIAN REPUBLIC, ICSID CASE NO. ARB/14/3
GREENTECH ENERGY SYSTEMS A/S & ORS. V. THE ITALIAN REPUBLIC, SCC ARBITRATION V (2015/095)
ANTIN INFRASTRUCTURE SERVICES LUXEMBOURG S.À.R.L. AND ANTIN ENERGIA TERMOSOLAR B.V. V. THE KINGDOM OF SPAIN, ICSID CASE NO. ARB/13/31
ANTARIS SOLAR GMBH AND DR. MICHAEL GÖDE V. CZECH REPUBLIC, PCA CASE NO. 2014-01
MASDAR SOLAR & WIND COOPERATIEF U.A. V. THE KINGDOM OF SPAIN, ICSID CASE NO. ARB/14/1
Isolux Infrastructure Netherlands B.V. v. the Kingdom of Spain, SCC Case No. V2013/153
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/36
The Energy Charter Secretariat is in expansion mode, wanting to gain access to energy resources in Africa and Asia for its members—and extending a far-reaching and outdated investment protection system to investments in resource-rich countries.
Those that propose that the environment needs “more investment protection” are recommending a very long-term solution (of questionable efficacy) to what is essentially a short-term problem.
Energorynok had no ownership or control over energy-related economic activity; ECT case against Moldova dismissed
State Enterprise “Energorynok” (Ukraine) v. The Republic of Moldova, SCC Arbitration V (2012/175)
Canada receives investor complaints over provincial energy and environment policies In recent months the government of Canada has received two complaints related to energy and environmental policies adopted by its provinces. Both investors have served Ottawa with notices of intent to submit a claim to arbitration under NAFTA’s investment chapter. A Delaware-based energy firm is […]
Vattenfall launches new claim against Germany The Swedish state-run energy firm Vattenfall has launched a second claim against Germany. The claim stems from Germany’s May 2011 decision to phase-out its nuclear power plants, in which 8 plants have been shuttered and the remaining 9 plants to be closed over the next decade. While Germany has […]
As governments increasingly turn to renewable energy to mitigate climate change, domestic climate-related policies in the form of price support measures such as feed-in tariffs (FiTs) have played an important role in stimulating the much needed investment—public and private, domestic and foreign—in the sector. Feed-in tariffs are characterized by guaranteed electricity purchase prices (set higher […]
Arbitrator sharply critical of majority decision in Italian bondholder claim against Argentina Abaclat and Others (Case formerly known as Giovanna a Beccara and Others) v. Argentine Republic, ICSID Case No. ARB/07/5 Damon Vis-Dunbar Professor Georges Abi-Saab has delivered a sharply worded dissent against a decision that granted jurisdiction to an ICSID case involving tens of […]
Philip Morris files for arbitration over intellectual property dispute with Australia The tobacco company Philip Morris filed for arbitration on 21 November 2011, claiming the government of Australia’s regulations on cigarette branding breach the Hong Kong-Australia bilateral investment treaty. The announcement arrived on the same day that the Australian Parliament passed legislation that bans most […]
UK firm victorious in dispute with Russia, but damages much less than claimed RosInvestCo UK Ltd. v. The Russian Federation, SCC Case No. Arb. V079/2005 Lise Johnson In an award dated 12 September 2010, the tribunal in RosInvestCo v. Russian Federation issued an award in which it found that the Russian Federation had unlawfully expropriated […]
By Elizabeth Whitsitt March 11, 2010 Despite snow storm interruptions a tribunal, composed of Mr. V.V. Vedeer, Ms. Gabrielle Kaufmann-Kohler, and Ms. Brigitte Stern, heard the merits of the dispute between Belgium-based energy firm Electrabel SA and Hungary last month. Along with AES Summit Generation Limited v. Republic of Hungary, the Electrabel SA v. Republic […]
By Elizabeth Whitsitt February 14, 2010 Three highly anticipated decisions permitting three claimants – all former shareholders of Yukos Oil Corporation OJSC (Yukos) – to proceed to the merits phase of their multi-billion dollar expropriation claim against the Russian government have been released to the public.* Similar in content, all three decisions were issued by […]
By Elizabeth Whitsitt November 3, 2009 On September 17, 2009 an ICSID tribunal dismissed yet another claim initiated against the Republic of Turkey by an entity, Cementownia “Nowa Huta” S.A. (“Cementownia”), operated by the Uzan family. As previously reported*, the Uzans are a wealthy Turkish family whose members have been enmeshed in multiple disputes around […]
Confusion about Settlement Agreement leads to Dismissal of Case Between Dutch Companies and Azerbaijan
By Elizabeth Whitsitt November 3, 2009 After a disagreement regarding the existence of a settlement agreement, an ICSID tribunal has determined that it has no jurisdiction to hear a dispute initiated by three Dutch companies, Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. against the Republic of Azerbaijan. The Dutch […]
By Damon Vis-Dunbar 15 July 2009 Arbitration proceedings between the Government of Germany and the Swedish energy utility Vattenfall should be conducted transparently, argue a coalition of non-governmental organizations. Greenpeace Germany and the World Economy, Ecology and Development organization are pressing the German Government to reverse its policy of not commenting or disclosing information related […]
By Damon Vis-Dunbar 11 July 2009 Investment Treaty News (ITN) has posted the request for arbitration by the Swedish energy utility Vattenfall against the Government of Germany. In April Vattenfall brought the German government to international arbitration in a challenge to environmental restrictions imposed by the City of Hamburg on a coal-fired power plant under […]
By Damon Vis-Dunbar 2 May 2009 The German government has declined to provide information on an investment dispute with the European utility Vattenfall on the grounds that it is against government policy to comment or disclose information on pending arbitrations. As has been reported in the financial press, Vattenfall is bringing the German government to international […]
By Damon Vis-Dunbar13 October 2008 Details of an arbitration involving a Latvian investor and the government of the Ukraine have emerged following the public release of the tribunal’s final award, some seven months after the decision was rendered. The Ukraine has been absolved of charges that it had breached the Energy Charter Treaty (ECT), a […]
By Elizabeth Whitsitt 30 September 2008 In a 27 August 2008 decision, a tribunal has concluded that Plama Consortium Limited (PCL), a Cyprus firm, was not entitled to protections afforded under the Energy Charter Treaty (ECT), given that it had fraudulently misrepresented itself when it invested in a privatized refinery, Nova Plama AD. In addition, […]
Caratube International Oil Company LLP v. Republic of Kazakhstan: American investor sues Kazakhstan over oil-field dispute
By Damon Vis-Dunbar 26 September 2008 A US citizen, Devincci Salah Hourani, has launched a lawsuit against the government of Kazakhstan over a failed contract to explore and exploit oil in the country. Mr. Hourani, who holds a 92% stake in the Kazakh firm Caratube International Oil Company (CIOC), has alleged breaches of the United […]
The International Institute for Sustainable Development has published a report on clean-energy investment, with a focus on encouraging policies that would attract environmentally sustainable investment into developing countries. The report describes obstacles and opportunities to attracting clean-energy investment. At the domestic level, these include the various criteria that make the environment either attractive or risky for investors. At […]
Transnational Dispute Management (TDM) is announcing a special issue dedicated to the notion of investment. The theme of the issue is: “The notion of investment: in search of an acceptable definition“. Contributions are invited from prospected authors with unpublished or previously published articles, conference papers, research papers, case studies. The recent arbitration awards where the […]