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by Dr. Avidan Kent, UEA Law School
[1]
This symposium deals with investment in natural resources. The hottest topic in this context (and possibly in the context of investment law more widely) is, without a doubt, investment in the renewable energy sector, with dozens of investment arbitrations either ongoing or recently concluded. The context in these cases is often the same. A certain state wishes to increase its energy production, while reducing its adverse impact on the environment. Such investment requires resources that the state does not have, notably expertise and capital. The state then asks foreign firms – rich in both expertise and capital – to fill this gap, and offers in return a long term, lucrative deal. The deal turns out to be too lucrative for the state’s taste (often enough for justified reasons, and often due to the 2008-9 financial crisis); the state consequently decides to renege on its commitments, and the investor subsequently launches an investment dispute in order to save its investment and/or expected profit.
The barrage of ongoing cases, and the jurisprudence that they will create, will determine the role of investment law as a tool for promoting future private investment in the Renewable Energy (RE) sector – a key component in the global effort to fight climate change, and achieving Sustainable Development Goal 7 (access to energy) more widely.
Investment in renewables: The need for assurances
RE investments are usually associated with a high upfront cost and a very long payback period.[2] For this reason, support schemes such as feed-in tariffs (FIT) are often designed to last between 15-25 years - a period sufficiently long to ensure the profitability of these investments. The problem with most support schemes, however, is that the same entity that makes the long-term promise to pay for the electricity (i.e. the state) is also responsible for enforcing the deal. In other words, once making the investment, the investor is entirely in the hands of the state. This dynamic suggests the need for a higher ‘enforcer’; one that is not subject to the power and whims of the state and, if necessary, can ensure that the deal is respected. This role is traditionally played by international law. Indeed the cases discussed in this blog post are all based on international law, and more specifically on the Energy Charter Treaty (ECT); a treaty that is dedicated to cooperation in the energy sector and includes investment protection provisions.
Can investment law provide assurances for RE investors?
International Investment Agreements (IIAs) provide foreign investors with treaty-based guarantees against foreign investors’ worst fears, inter alia nationality-based discrimination, abuse of regulatory powers, expropriation, and more. The Investor-State Dispute Settlement system (ISDS) allows investors to enforce these guarantees independently from their home states. It is clear that at least potentially, IIAs can influence investors’ decision-making processes in favour of making an investment in the RE sector. In theory, the protections provided by IIAs should be most welcome by foreign investors; they may derisk their investments and ensure that acceptable standards of due process and rule of law are upheld. Whether these guarantees are indeed affecting investors’ decisions and leading to positive impacts on the promotion of Foreign Direct Investment (FDI), is, however, a subject to a heated debate. In short, it is questioned whether IIAs indeed increase foreign investment, or, in other words, whether the assurances provided by IIAs matter at all.[3]
The author of this blog post is not qualified to judge between the sides to this debate. A cursory review of the literature nevertheless reveals that most experts agree that IIAs do have a positive impact on FDI flows, even if only to a certain extent and with some limitations.[4] Interestingly, Collen et al found that the positive impact of IIAs is also dependent on the sector in which the investment was made, stating that ‘FDI in those sectors with higher sunk costs responds more strongly to the signing of BITs.’ Investment in the RE-sector very much fits with this description, even more so than the average energy project. In fact, the upfront initial investment needed for an RE-based power plant are far higher than the equivalent fossil fuel-based alternative.[5] This is all suggesting that prior to making an investment IIAs indeed play a positive role, especially in the context of investment in the RE sector.
Enforcing assurances through ISDS:
It seems then likely that even with all the necessary caveats, the assurances provided by IIAs are useful for investors in the RE sector. As stated above, the ability to ‘redeem’ these assurances is currently being tested by investors in this sector in numerous investor-state arbitrations. But does investment law really lives up to these expectations? The answer to this question will be known once the dust has settled and the dozens of investment awards in RE disputes have been published. The cases discussed in this post provide an early indication to what the answer will be.
The below-discussed cases concern the withdrawal/reduction of benefits allegedly promised to investors in the RE sector. Many of these cases address Spain and the Czech Republic, and specifically these states’ revocation of alleged promises made to investors in the RE sector. Other states (e.g. Italy) have faced similar claims, which will not be discussed in length due to space limitation. A quick review of the facts that led to these disputes is useful to understand the context of RE-related investment disputes.
Spain’s contested measures:
The facts (which are portrayed in greater detail in the awards) are as follows. In order to meet the objectives of international and EU environmental laws, Spain adopted Law 54/1997. The Law’s main objective was to create a ‘special regime’ that was supposed to support RE generation and encourage investment in this area.
Law 54/1997 was later concretised and supplemented with a line of regulations in which specific tariffs were set for two defined periods (for the first 25 years of operation, and from Year 26 onwards). During those years, Spain further adopted a set of plans and engaged in promotional activities, all with the aim of increasing RE-related investment. For example, in 2005 the Spanish Government adopted its 2005-2010 RE Plan (PER 2005-2010) in which ambitious targets were set (“29.4% of the electricity generation from renewable resources”[6]). The plan included inter alia statements such as that “the proper functioning of these mechanisms must be guaranteed […] to maintain investor's confidence" and that “the Special Regime should maintain “investor's confidence […] through a stable and predictable support scheme”.[7]
The Spanish attempt to attract investment in its RE sector was highly successful. But then the year 2008 arrived, and with it the global financial crisis.
Spain was one of the countries most drastically affected by the global financial crisis. The generous support schemes for the production of RE which were once considered as a priority, became, almost overnight, a dispensable luxury. The economic crisis has led to a drop in consumers electricity demand, and accordingly also to a drop in in the funds available for financing the RE support schemes and leading to a significant financial deficit in the authorities’ budgets.
The regulatory approach changed accordingly. New laws were enacted, effectively remaking the terms and conditions that were promised to investors in the RE sector. Notably, new tariffs were introduced as well as new technical requirements, a new tax and a cap on the number of eligible production hours.
Some investors attempted, unsuccessfully, to challenge these regulatory changes before domestic courts. Eventually however, many of these investors resorted to international investment law - the ECT more specifically - demanding compensation from the Spanish government for what, they claim, was essentially a breach of the promises that led them to invest in Spain in the first place.
Most of the publicly available awards address the regulatory framework discussed above. However, Spain’s modification of its RE regulation did not stop there. By 2013 (RDL 2/2013 and RDL 9/2013, Law 24/2013) Spain effectively terminated the Feed-In Tariffs (FIT) scheme available under the ‘special regime’, replacing it with a ‘special payment’ regime, according to which producers are entitled to a ‘reasonable return’. While the FIT paid producers per unit of electricity, the ‘reasonable return’ is calculated based on value of the initial investment, operation cost and revenues. The preamble to Law 24/2013 reminds readers of the reasons for these regulatory changes:[8]
‘Despite the fact that tolling increased by [one hundred and] twenty two percent between 2004 and 2012, positioning the electricity price in Spain well above the European Union average, this was not enough to cover the system’s costs. This imbalance has reached the point where the accumulated debt of the electrical system is currently in excess of twenty six billion Euros, the structural deficit of the system stands at ten billion per annum and the failure to correct the imbalance has introduced the risk of the bankruptcy of the electrical system.
Law 54 enacted on November 27th 1997 has proven insufficient to ensure the financial balance of the system, amongst other reasons because the remuneration system for regulated activities has lacked the flexibility required for its adaptation to major changes in the electrical system or in the evolution of the economy.’
The Czech Republic’s contested measures
In May 2019 four arbitral awards in cases against the Czech Republic were made public,[9] joining a line of other decisions that were previously made concerning the Czech Republic’s regulation of its RE sector.[10] The factual background is similar in these four cases, and so are the awards (which were issued by the same Tribunal on the same day).
The year 1992 marked the beginning of the Czech Republic’s adoption of a line of support schemes that aimed at the promotion of investment in RE. The first key step was the adoption of two tax incentives for RE producers (1992). A second key step was the adoption (2005) of Act No. 180/2005 (‘Act on Promotion’), which aimed to ‘promote the exploitation of renewable energy sources’. The Act on Promotion introduced a line of incentives, including: ‘(1) preferential treatment of RES producers in the distribution or transmission of electricity, (2) fixed purchase prices or Feed-in-Tariffs (“FiT”) and, alternatively, (3) Green Bonuses (“Green Bonuses”, and together with the FiT, “Subsidies” or “Tariffs”)’.[11]
The FIT was initially set for 15 years, with a purchase price set annually by the Czech authorities. The Act on Promotion also installed restrictions on the government’s ability to change the tariffs.[12] Importantly, the government tied its own ability to reduce tariffs to no more than 5% per year, ensuring long-term price stability. Another guarantee made through the Act on Promotion was that the FIT’s payments will allow investors to recover their investment within 15 years (a promise that was repeated also in the Technical Regulation, that was issued later on), as well as a 7% annual profit during this term.[13]
Government officials have made a line of statements concerning the Act on Promotion with the objective of convincing investors of its usefulness. The arbitrators remind readers of this aim with the following statement:
‘[i]n particular, Mr. Martin Bursík, one of the co-authors of the Act on Promotion, who became Minister of Environment from 2007 to 2009, stated in his article dated 1 June 2005 that the most important principle of the Act on Promotion was “the guarantee of a stable feed-in tariff for a 15 year period following the launch of the power station into operation.”’[14]
In 2009 the Czech authorities adopted the Pricing Regulation, in which an annual increase of 2%-4% to the FIT was determined and guaranteed for a period of 20 years.
In 2008-2009 the financial crisis struck, bringing with it political turmoil. The then Czech Prime Minister resigned and a new temporary government was appointed. During this period, and in light of the obvious economic strains, the authorities began (publicly) expressing the view that the FIT prices were too high, especially in the solar market where production prices were significantly reduced and, accordingly, profit margins soared.
In August 2009, the government announced its intention to abolish the 5% price reduction restriction. The massive increase in profitability of the solar sector was mentioned as a reason for the annulment of this restriction.[15] In March 2010 the 5% restriction was abolished, but only for certain investments: ‘for those types of renewable resources, which, in the year in which the new feed-in tariffs are being determined, achieve the investment return shorter than 11 years.’[16]
In October 2010 further changes were made: the 1992 tax incentives were cancelled, and a new solar levy was imposed on ‘facilities commissioned during the period from 1 January 2009 to 31 December 2010’.[17] In 2012 all existing FIT contracts were to be terminated, and new, more onerous contracts were imposed on RE firms. Existing FIT tariffs, however, were not affected.[18]
An emerging jurisprudence?
As stated above, there are still many more ongoing arbitrations and a clear line of jurisdiction is yet to appear. Nevertheless, during the last two years, several early awards were made public. While investment tribunals do not follow the stare decisis rule, these decisions could provide some indication as to the manner in which this torrent of cases will be resolved.
Expropriation?
Claimants made several legal arguments against Spain and the Czech Republic. In this blog post however, I will discuss only two of these arguments. First, the claimants in the Spanish cases argued that the financial impact of the Spanish measures was so severe as to deem their investment ‘expropriated’. This claim however was mostly rejected. The Novenergia Tribunal held that the regulatory effect was not drastic enough to be considered as ‘expropriation’ and investors’ property rights were ‘left unaffected’.[19] The Charanne Tribunal stated that the threshold for ‘expropriation’ requires a far more drastic impact than that created by the changes in the regulation.
These decisions are not surprising, nor are they controversial. Expropriation, by definition, is a very drastic measure and while investors often attempt to portray any adverse impact on their investment as ‘expropriatory’ in nature, tribunals will usually accept such claims only when the result is destruction / effective deprivation of the investment. This was not the case in these disputes and the claimants’ expropriation arguments were accordingly rejected. It can be learned therefore that even retrospective and meaningful changes to FIT programmes’ terms and conditions, dramatic as these may be (and the Spanish example is possibly the most dramatic of them all), are highly unlikely to be seen as carrying a sufficiently drastic impact on RE investments so as to be legally regarded as ‘expropriation’.
Fair and Equitable Treatment?
While ‘expropriation’ claims are likely to fail, other claims – based on the requirement to provide Fair and Equitable Treatment (FET, (Art 10(1) ECT)) – have met with some level of success. The FET provision is possibly the most controversial and debated element in investment law. Enrique Boone Barrera described it here in this blog as too vague (“a riddle wrapped in an enigma”) and called for its removal from investment treaties. The FET’s vagueness however, is not entirely negative. It provides arbitrators with the flexibility required when addressing the endless and often creative ways, in which host states can mistreat foreign investors.
The investors in these disputes stress the importance of stability in capital-intensive RE investment, especially in light of the long-term support schemes so necessary for the economic success of such investments. They further emphasised their ‘legitimate expectations’ that support schemes such as FIT will not be retrospectively changed, and that governments’ declarations and statements made to attract investment in this sector, will be respected.
In its defence, Spain claimed that investors cannot legitimately expect that states’ laws will be ‘frozen’. This defence claim was made also by the Czech Republic, which emphasised ‘the presumption that a host State does not violate its treaty obligation by simply changing its domestic law, noting that a State must be free to serve the public interest through legislative modifications.’[20] Investors, it is argued, are confusing ‘the notion of stability with the distinct concept of stabilization, explaining that a guarantee of stabilization prohibits a host State entirely from changing its legislation, while a mere obligation to provide stability does not.’[21]
‘Promises should be kept’ vs the right to regulate
The ‘Spanish’ Tribunals accepted the investors’ approach, at least to a certain extent. The Eiser Tribunal opened by stressing the importance of states’ right to regulate, which includes also the right to adversely modify regulatory frameworks. In this case however, the Tribunal believed that Spain simply went too far. The change in the regulation was drastic, ‘total and unreasonable’.[22] The Tribunal explains:[23]
‘[…] the evidence shows that Respondent eliminated a favourable regulatory regime previously extended to Claimants and other investors to encourage their investment in CSP. It was then replaced with an unprecedented [FN] and wholly different regulatory approach, based on wholly different premises. This new system was profoundly unfair and inequitable as applied to Claimants’ existing investment, stripping Claimants of virtually all of the value of their investment.’
The RREEF Tribunal agreed with the notion that the FET provision should not be understood as freezing states’ right to regulate, and that it all depends on how drastic and ‘radical’ states’ changes are:[24]
‘Stability is not an absolute concept; absent a clear stabilization clause, it does not equate with immutability. In this respect the Tribunal notes that the Claimants do not take such an extreme view. However, the obligation to create a stable environment certainly excludes any unpredictable radical transformation in the conditions of the investments.’
While the ‘Czech’ cases Tribunal ruled against the investors on this point, it seems that its approach was similar to that of the Eiser and RREEF Tribunals. The Tribunal opened by agreeing with the ‘Spanish’ tribunals that the Czech incentive regime cannot be seen as set in stone.[25] Indeed, modifications were introduced over the years to this scheme (e.g. the expansion of the plants’ lifespan from 15 to 20 years). The Tribunal mentions especially the drastic change in circumstances (i.e. the significant reduction in production prices and the 2008-2009 economic crisis) that legitimately merited a regulatory change.[26]
The Tribunal also mentions that changes made to the Czech FIT scheme cannot be seen as drastic. Even after the changes made to the FIT scheme, the reduction in solar panels’ prices (and thus in production cost) was so dramatic as to allow profits far and beyond originally projected by the investors (the expected payback period went down from 15 years to 9.9 years).[27] The ‘promise’ of profitability was without a doubt kept, in this respect.[28] Moreover, the factual circumstances in the Czech cases indicate that at the time of making these investments the government had already made its intentions to amend the FIT’s conditions publicly known;[29] a fact that suggests that the government acts were not unreasonable.
Importantly, the fact that the Czech Republic was careful to avoid retroactive regulatory changes seems important for the FET determination. While the ‘Czech’ cases Tribunal did not discuss this element, others did. Notably, the Antaris Tribunal addresses the alleged retroactive application of changes to FIT programmes. The fact that these claims on retroactivity were not supported led to the conclusion that investors’ legitimate expectations were not violated.[30] The RREEF Tribunal stated on the importance of retroactivity in this context:
‘There is, however, one aspect of the case, on which the Arbitral Tribunal has no hesitation to find that the Respondent acted in breach of its obligation to respect the principle of stability which, as recalled above, is a required obligation under the ECT, in that the challenged measures are partly retroactive.’
The observations made by the tribunals discussed above are important, especially as they serve as a warning to states wishing to modify their RE support scheme in relation to existing investments. The far less drastic changes complained of in Charanne were considered by the Tribunal as acceptable and compatible with the FET provision. Similarly, in another case against Italy (Blusun vs Italy), the Tribunal describes the Italian measure as ‘quite substantial, but was not in itself crippling or disabling’. The Tribunal further explains that ‘the reduction in incentives was proportionately less than the reduction in the cost of photovoltaic technology’, and that other important conditions (notably the length of the support scheme) remained intact.[31] In the cases against the Czech Republic, as noted above, the investors in fact made a significant profit and their situation can hardly be seen as drastic or dire.
While the different tribunals are addressing different measures and circumstances,[32] their bottom line seems to be coherent. “Reasonable”, even substantial modification of RE support schemes will be accepted as complying with Art 10(1) ECT. States’ right to regulate cannot be trumped, not even in light of the future-facing, binding nature of FIT programmes. On the other hand, more drastic measures – such as those discussed in Eiser - will not be tolerated. There is a line that a state cannot cross and these cases provide a benchmark example of where this line is. Notably, states will do well to ensure that the profitability of investments is somewhat maintained, and, importantly, avoid retroactivity. A significant change in circumstances will most likely be considered as a justified reason for making changes in existing regulations, especially where the impact of new measures is not drastic and applied fairly and indiscriminately.
An easy FIT? The nature of RE-support schemes and the ‘traditional’ FET interpretation
The result of these cases is not entirely surprising and, overall, it fits well with traditional investment jurisprudence. The ‘defenders’ of the investment regime will be pleased with this result as it weakens the criticism according to which the FET provision could be understood as a stabilisation clause. Investment tribunals are showing repeatedly that they do not believe that this interpretation is acceptable.
An interesting question however, is whether this approach is appropriate in the case of RE support schemes. The nature of schemes such as FIT is far more specific than ‘normal’ regulations; it is effectively a deal between two parties, where the terms and conditions are agreed upon in advance. The correct comparison here is not with a ‘normal’ regulation, which, of course, may change, but more with a specific contract that the parties are expected to follow, or even, as described by the UK’s Court of Appeal, a government bond. The England and Wales’ Court of Appeal described FITs and their nature in the following words:[33]
“The concept of a rate of payment fixed during the period of generation by reference to the date the installation became eligible for payment is fundamental to the Scheme. It provides an assurance as to the rate of return to an owner who has paid a capital sum prior to the installation coming into operation, subject to an adjustment in accordance with RPI. That the Scheme provides for a fixed rate of return during the period of generation is crucial to resolution of this appeal. Identification of the concept of a fixed rate does not depend upon any Explanatory Note, although those notes underline that concept. The fixed return to the owner assured by the Scheme was rightly described by Mr Grodzinski as analogous to the fixed rate of return on a Government bond.”
The arbitral tribunals discussed above have not made any such distinction. Furthermore, these tribunals have also largely ignored the public importance of RE support schemes, as well as the potential impact that such an approach may have on RE investors’ confidence and motivation to make similar investments in the future. Arguably, investments that are crucial for the delivery of public goals, should enjoy a higher level of protection. The critics of investment law are fast to use these ‘public goals’ as reasons to demand increased rights to regulate for states, and a reduced level of protection for private investors. It would make equal sense to also apply a similar logic in the other direction, where investors’ activities are promoting the very same public goals.
Regardless of this criticism, it seems that the emerging conclusion from these early cases is that investment law can play, and is playing, an important role in the promotion of climate change programmes. It provides an additional layer of protection for RE-related investment, one that sits above and away from the host state. These cases demonstrate that even in ‘progressive’ countries – EU member states – this layer of protection is far from being redundant.
The cases discussed above could also result with a certain ‘positive’ regulatory chill. According to the regulatory chill argument, ‘policy-makers take into account potential disputes with foreign investors before they even begin to draft a policy and prioritize avoiding such disputes over the development of efficient regulation in the public interest.’[34] The regulatory chill argument is often used against the investment regime, stating that it inhibits states’ regulation of fields such as human rights and environmental protection. However, as discussed by this author elsewhere, it could be that in the case of RE investment the ‘regulatory chill’ can play a positive role, by making states think twice before revoking support schemes and undermining investors’ confidence in this area. Some indication of this positive role appears in the Antaris vs Czech Republic Award, which cites the Explanatory Report published by the Czech government prior to the amendment of the regulatory regime, and explains the decision to avoid retroactive changes to the FIT programme in the following words:[35]
“Investors may prepare sufficiently in advance for amendment of the conditions for investment, which should entirely eliminate the risk of potential lawsuits against the Czech Republic related to protection of investments.”
As the voices against the field of international investment law (and international law more generally) are heard as loudly as ever, it is important to recognise the complexity of the picture. Not all foreign investors are ‘evil’ and some, as in the cases discussed above, are in fact playing a crucial role in achieving worthy public objectives, such as those involved in the fight against climate change. Investment law has a definite and valuable role to play in this reality.
Published here 05/10/2019
[1] This blog is an expanded and updated version of a post published by the author in 2018.
[2] Lars Strupeit et al. ‘Overcoming barriers to renewable energy diffusion: business models for customer-sited solar photovoltaics in Japan, Germany and the United States’ (2016) 123(1) Journal of Cleaner Production 124.
[3] See review of the critical voices in Kyla Tienhaara, ‘Does the green economy need investment state dispute settlement?’ in Kate Miles (ed.) Research Handbook on Environment and Investment Law (EE 2019).
[4] Aisbett et al claim that IIAs promote FDI as long as claims were not brought against host states; Frenkel and Walter claim that strong ISDS provisions positively impact FDI flow (although Berger et al argue that this impact is ‘minor’); Berger et al. argue that where IIAs include liberal admission rules (e.g. National Treatment) they promote FDI and that ‘RTAs without strong investment provisions may even discourage FDI’; Neumayer & Spess show a positive impact of BITs on FDI flows to developing countries, a conclusion that was re-confirmed by Busse et al, that add that they ‘may even substitute for weak domestic institutions, though probably not for unilateral capital account liberalization’. See more in a literature review of studies that dealt with this question in Zbigniew Zimny et al. “The Role of International Investment Agreements in Attracting Foreign Direct Investment” (2009) UNCTAD Series on International Investment Policies for Development (UN, 2009), online: UNCTAD, <http://unctad.org/en/Docs/diaeia20095_en.pdf>.
[5] Tobias Schmidt ‘Low-carbon investment risks and de-risking’ (2014) 4 Nature Climate Change 237.
[6] Novenergia award, para 104.
[7] Novenergia award, para 105.
[8] RREEF Infrastructure vs Spain, para 135.
[9] I.C.W. Europe Investments Limited vs The Czech Republic; WA Investments-Europa Nova Limited vs The Czech Republic; Voltaic Network GMBH vs The Czech Republic; Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic. All awards were issued on May 15th 2019, by the same tribunal.
[10] See inter alia Antaris vs The Czech Republic; Natland v. Czech Republic; Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic.
[11] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at Para 136.
[12] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at Para 140.
[13] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 446.
[14] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 141.
[15] Czech government announcement, as quoted in Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 159.
[16] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 173.
[17] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 172.
[18] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 175.
[19] Novenergia award, para 761. See also Charanne award, para 462-467.
[20] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 377.
[21] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 379.
[22] Eiser award para 364.
[23] Eiser award para 365.
[24] RREEF Infrastructure vs Spain, para 315.
[25] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at paras 449, 484.
[26] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at paras 512.
[27] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 490.
[28] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 490.
[29] Photovoltaik Knopf Betriebs-GMBH vs The Czech Republic at para 475; Voltaic Network GMBH vs The Czech Republic at para 479; ICW vs The Czech Republic at Para 522; WA Investments-Europa Nova Limited vs The Czech Republic at para 563.
[30] Antaris vs The Czech Republic, para 430.
[31] Blusun vs Italy (Award 27 December 2016) ICSID Case No ARB/14/3, para 342.
[32] The Charanne claims did not cover some of the more impactful measures that were discussed in other cases, and the Blusun arbitration dealt with a different regulatory system altogether.
[33] The Secretary of State for Energy and Climate Change vs Friends of the Earth and Others [2012] EWCA Civ 28 <https://prospectlaw.co.uk/wp-content/uploads/2014/08/Court-of-Appeal-Judgment.pdf> para 40.
[34] Kyla Tienhaara, ‘Regulatory chill and the threat of arbitration: a view from political science’ in Chester Brown and Kate Miles (eds), Evolution in investment treaty law and arbitration (CUP 2011).
[35] 414.