Title The Sun behind the Clouds? Enforcement of Renewable Energy Awards in the EU
Authors LEAL RODRÍGUEZ, ANTONIO LUIS, LEAL RODRÍGUEZ, ANTONIO LUIS
External publication No
Means Trans. Environ. Law
Scope Review
Nature Científica
JCR Quartile 1
SJR Quartile 1
JCR Impact 2.64100
Area International
Web https://www.scopus.com/inward/record.uri?eid=2-s2.0-85069296007&doi=10.1017%2fS204710251900013X&partnerID=40&md5=2c3c6d804a64314be2f7f4bbbd4a6fd9
Publication date 01/01/2019
ISI 000475937800004
Scopus Id 2-s2.0-85069296007
DOI 10.1017/S204710251900013X
Abstract A number of European Union (EU) countries have undertaken thorough reforms in the renewable energy sector over the past years. The regulatory changes have triggered a wave of claims from low-carbon investors asserting that the reforms have diminished or exhausted the economic viability of their investments. Unlike local investors, who typically take legal action before domestic courts, foreign investors have filed arbitration claims in accordance with the Energy Charter Treaty, notably against Spain, Italy, Bulgaria, and the Czech Republic, resulting in several awards of damages. However, recent developments in EU state aid law seem to restrict the ability of investors to obtain compensation. This article argues that such developments may undermine renewable energy policy, because arbitration enhances the regulatory stability and predictability which low-carbon investments require only if arbitral awards can be enforced effectively. The article examines the different scenarios that may arise out of the interplay between EU law and investment arbitration in the EU and concludes that the European Commission's arguable redrawing of the boundaries of state aid rules to encompass investment arbitration, combined with the EU's general quest to replace investment arbitration with alternative mechanisms of adjudication, may jeopardize climate change mitigation policies. © 2019 Cambridge University Press.
Keywords Climate change mitigation; Energy Charter Treaty; EU law; Investor-state dispute settlement (ISDS); Renewable energy; State aid
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