Over the past 30 years, since the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), and in particular its main legal instrument, the Kyoto Protocol, climate change has come to the forefront of global public debate and has also become a matter of law. The adoption of the Paris Agreement in December 2015 was an important development. As the Paris Agreement makes clear, the world must and has agreed to continue its efforts to keep global warming well below two degrees, with a maximum increase of 1.5 degrees above pre-industrial levels. To achieve this goal, many states have begun to shift to cleaner energy sources by shutting down existing nuclear and coal power plants and introducing incentive schemes for renewable energy. However, the phase-out legislation exposes these countries to claims from investors for their financial losses resulting from these policies (See Vattenfall AB and others v. Germany, ICSID Case No. ARB/12/12 (Decision 31 August 2018); RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands, ICSID Case No. ARB/21/4; Uniper SE, Uniper Benelux Holding B.V. and Uniper Benelux N.V. v. Kingdom of the Netherlands, ICSID Case No. ARB/21/22 (Order of Discontinuance 17 March 2023)). In addition, the inconsistency of renewable energy incentives has also led to disputes. The most striking examples of energy transition disputes are those brought against Spain over incentives for renewable energy projects (See Charanne B. V. & Construction Investments S.A.R.L. v the Kingdom of Spain, SCC Arb No 062/2012 (Award 21 January 2016); Isolux Infrastructure Netherlands B.V. v. Spain, SCC Arb No 2013/153 (Award 17 July 2016); Eiser Infrastructure Limited and Energía Solar Luxembourg S.à.r.l. v Kingdom of Spain, ICSID Case No ARB 13/36 (Award 4 May 2017); Novenergia II—Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v The Kingdom of Spain, SCC Arb No 2015/063 (Award 15 February 2018); Masdar Solar & Wind Cooperatief U.A v Kingdom of Spain, ICSID Case No ARB 14/1 (Award 16 May 2018); Antin Infrastructure Services Luxembourg S.à.r.l and Antin Energia Termosolar B.V v Kingdom of Spain, ICSID Case No ARB 13/31 (Award 15 June 2018); Foresight Luxembourg Solar and al. v Kingdom of Spain, SCC Arb No 2015/150 (Final Award 14 November 2018); REEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.àr.l. v Kingdom of Spain, ICSID Case No ARB 13/30 (Decision 30 November 2018); Cube Infrastructure Fund SICAV and Others v Kingdom of Spain, ICSID Case No ARB 15/20 (Decision 19 February 2019); NextEra Energy Global Holdings B.V et al. v Kingdom of Spain, ICSID Case No ARB 14/11 (Decision 12 March 2019); 9REN Holding S.à.r.l. v Kingdom of Spain, ICSID Case No ARB 15/15 (Award 31 May 2019); SolEs Badajoz GmbH v Kingdom of Spain, ICSID Case No ARB 15/38 (Award 31 July 2019); InfraRed Environmental Infrastructure GP Limited and others v Kingdom of Spain, ICSID Case No ARB 14/12 (Award 2 August 2019); OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Kingdom of Spain, ICSID Case No ARB 15/36 (Award 6 September 2019); Stadtwerke München GmbH, RWE Innogy GmbH and others v Kingdom of Spain, ICSID Case No ARB 15/1 (Award 2 December 2019); BayWar.e. Renewable Energy GmbH and BayW r.e Asset Holding GmbH v Kingdom of Spain, ICSID Case No ARB 15/16 (Decision 2 December 2019); RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v Kingdom of Spain, ICSID Case No ARB 14/34 (Decision 30 December 2019); Watkins Holding S.à.r.l. and al v Kingdom of Spain, ICSID Case No ARB 15/44 (Award 21 January 2020); The PV Investors v Kingdom of Spain, PCA Case No 2012-14 (Final Award 28 February 2020); Hydro Energy 1 S.àr.l. and Hydroxana Sweden AB v Kingdom of Spain, ICSID Case No ARB 15/42 (Decision 9 March 2020); RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Spain, ICSID Case No. ARB/14/34 (Award 18 December 2020); BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16 (Award 25 January 2021); FREIF Eurowind Holdings Ltd. v. Spain, SCC Case No. 2017/060 (Final Award 8 March 2021); STEAG GmbH v. Spain, ICSID Case No. ARB/15/4 (Award 17 August 2021); TS Villalba GmbH and others v. Spain, ICSID Case No. ARB/21/43 (Order of Discontinuance 24 March 2022); RENERGY S.à.r.l. v. Spain, ICSID Case No. ARB/14/18 (Award 5 June 2022)). Spain was one of the first countries to introduce incentives to attract foreign investors to the renewable energy sector. However, Spain had to withdraw these incentives due to economic policy reasons, which also led to a wave of claims against Spain. These claims are based on the Energy Charter Treaty (ECT), which aims to facilitate transactions and investments in the energy sector by protecting property interests and reducing political and regulatory risks. By ratifying the ECT, contracting states agreed to provide a stable, predictable and transparent legal and regulatory framework for investors in the energy sector (Art. 10 ECT) and to be held liable with a prompt, adequate and effective compensation for direct and indirect expropriation (Art. 13 ECT). The aim of this paper is to assess the energy transition disputes and to discuss whether or not these regulatory measures may constitute indirect expropriation and be compensable under the ECT in the light of global climate change policy. If yes, how will such burden of compensation effect climate change policies of countries party to the ECT? Will law and its interpretations hinder green energy transition?

Can Green Energy Transition Be Achieved Despite Investment Disputes?

章节
发表日期：

2025年

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Ceyda Süral Efeçınar,
Başak Başoğlu

摘要

Over the past 30 years, since the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), and in particular its main legal instrument, the Kyoto Protocol, climate change has come to the forefront of global public debate and has also become a matter of law. The adoption of the Paris Agreement in December 2015 was an important development. As the Paris Agreement makes clear, the world must and has agreed to continue its efforts to keep global warming well below two degrees, with a maximum increase of 1.5 degrees above pre-industrial levels. To achieve this goal, many states have begun to shift to cleaner energy sources by shutting down existing nuclear and coal power plants and introducing incentive schemes for renewable energy. However, the phase-out legislation exposes these countries to claims from investors for their financial losses resulting from these policies (See Vattenfall AB and others v. Germany, ICSID Case No. ARB/12/12 (Decision 31 August 2018); RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands, ICSID Case No. ARB/21/4; Uniper SE, Uniper Benelux Holding B.V. and Uniper Benelux N.V. v. Kingdom of the Netherlands, ICSID Case No. ARB/21/22 (Order of Discontinuance 17 March 2023)). In addition, the inconsistency of renewable energy incentives has also led to disputes. The most striking examples of energy transition disputes are those brought against Spain over incentives for renewable energy projects (See Charanne B. V. & Construction Investments S.A.R.L. v the Kingdom of Spain, SCC Arb No 062/2012 (Award 21 January 2016); Isolux Infrastructure Netherlands B.V. v. Spain, SCC Arb No 2013/153 (Award 17 July 2016); Eiser Infrastructure Limited and Energía Solar Luxembourg S.à.r.l. v Kingdom of Spain, ICSID Case No ARB 13/36 (Award 4 May 2017); Novenergia II—Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v The Kingdom of Spain, SCC Arb No 2015/063 (Award 15 February 2018); Masdar Solar & Wind Cooperatief U.A v Kingdom of Spain, ICSID Case No ARB 14/1 (Award 16 May 2018); Antin Infrastructure Services Luxembourg S.à.r.l and Antin Energia Termosolar B.V v Kingdom of Spain, ICSID Case No ARB 13/31 (Award 15 June 2018); Foresight Luxembourg Solar and al. v Kingdom of Spain, SCC Arb No 2015/150 (Final Award 14 November 2018); REEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.àr.l. v Kingdom of Spain, ICSID Case No ARB 13/30 (Decision 30 November 2018); Cube Infrastructure Fund SICAV and Others v Kingdom of Spain, ICSID Case No ARB 15/20 (Decision 19 February 2019); NextEra Energy Global Holdings B.V et al. v Kingdom of Spain, ICSID Case No ARB 14/11 (Decision 12 March 2019); 9REN Holding S.à.r.l. v Kingdom of Spain, ICSID Case No ARB 15/15 (Award 31 May 2019); SolEs Badajoz GmbH v Kingdom of Spain, ICSID Case No ARB 15/38 (Award 31 July 2019); InfraRed Environmental Infrastructure GP Limited and others v Kingdom of Spain, ICSID Case No ARB 14/12 (Award 2 August 2019); OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Kingdom of Spain, ICSID Case No ARB 15/36 (Award 6 September 2019); Stadtwerke München GmbH, RWE Innogy GmbH and others v Kingdom of Spain, ICSID Case No ARB 15/1 (Award 2 December 2019); BayWar.e. Renewable Energy GmbH and BayW r.e Asset Holding GmbH v Kingdom of Spain, ICSID Case No ARB 15/16 (Decision 2 December 2019); RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v Kingdom of Spain, ICSID Case No ARB 14/34 (Decision 30 December 2019); Watkins Holding S.à.r.l. and al v Kingdom of Spain, ICSID Case No ARB 15/44 (Award 21 January 2020); The PV Investors v Kingdom of Spain, PCA Case No 2012-14 (Final Award 28 February 2020); Hydro Energy 1 S.àr.l. and Hydroxana Sweden AB v Kingdom of Spain, ICSID Case No ARB 15/42 (Decision 9 March 2020); RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Spain, ICSID Case No. ARB/14/34 (Award 18 December 2020); BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16 (Award 25 January 2021); FREIF Eurowind Holdings Ltd. v. Spain, SCC Case No. 2017/060 (Final Award 8 March 2021); STEAG GmbH v. Spain, ICSID Case No. ARB/15/4 (Award 17 August 2021); TS Villalba GmbH and others v. Spain, ICSID Case No. ARB/21/43 (Order of Discontinuance 24 March 2022); RENERGY S.à.r.l. v. Spain, ICSID Case No. ARB/14/18 (Award 5 June 2022)). Spain was one of the first countries to introduce incentives to attract foreign investors to the renewable energy sector. However, Spain had to withdraw these incentives due to economic policy reasons, which also led to a wave of claims against Spain. These claims are based on the Energy Charter Treaty (ECT), which aims to facilitate transactions and investments in the energy sector by protecting property interests and reducing political and regulatory risks. By ratifying the ECT, contracting states agreed to provide a stable, predictable and transparent legal and regulatory framework for investors in the energy sector (Art. 10 ECT) and to be held liable with a prompt, adequate and effective compensation for direct and indirect expropriation (Art. 13 ECT). The aim of this paper is to assess the energy transition disputes and to discuss whether or not these regulatory measures may constitute indirect expropriation and be compensable under the ECT in the light of global climate change policy. If yes, how will such burden of compensation effect climate change policies of countries party to the ECT? Will law and its interpretations hinder green energy transition?