Feed-in Tariff Schemes in the Renewables Industry (I): Investment Arbitration Cases Concluded in 2019

Feed-in Tariff Schemes in the Renewables Industry (I):
Investment Arbitration Cases Concluded in 2019

Feed-in Tariffs (“FITs”) have become a controversial state policy over the past two decades in Europe, resulting in a significant number of investment arbitration cases against Spain, Italy and the Czech Republic. In the words of the Energy Charter Secretariat, the institution that monitors the implementation of the Energy Charter Treaty of 1994 (“ECT”), claims of investors against these EU Member States arise from “legal reforms affecting the renewable energy sector”. Yet, regulatory reforms in the EU renewables sector concern only one aspect of the complex and multi-faceted nature of these investment arbitration cases. Not only has the European Commission (“EC”) intervened in arbitration proceedings as amici it has also pursued a rather aggressive strategy in an attempt to protect its monopoly on decision-making on foreign direct investment (“FDI)” embodied in Articles 344 and 267 of the TFEU. This article discusses recent developments in the ‘FIT saga’, reporting on the investment arbitration cases concluded in 2019 instituted under the ECT and various bilateral investment treaties (“BITs”) against Spain, Italy and the Czech Republic.

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