Published 9 October 2019
During the past decades, the global energy scene has witnessed a considerable increase in clean energy investments, mostly driven by government-led incentive programmes. In the Eurasian region, which is the main focus of this article, Europe leads the international clean energy transition and Asia’s renewable energy sector has been growing steadily over the last few years. Due to their large-scale and long-term character, renewable energy investments present specific risks to investors. This, combined with the actions taken in a number of States to cancel incentive measures, has resulted in an onslaught of claims involving the renewable energy sector, predominantly brought under the Energy Charter Treaty (ECT). This article examines the approaches that various tribunals adopted when ruling on indirect expropriation claims in renewable energy arbitration cases under the ECT. Based on an analysis of the tribunals’ reasoning in these cases and on a comparative overview of other investment tribunals’ assessments of indirect expropriation claims, the goal of this article is to elucidate the standard(s) applied to determine whether an indirect expropriation has occurred under the ECT. The article also aims to identify the legal and policy considerations that may drive arbitral tribunals in making their findings on indirect expropriation in renewable energy arbitrations under the ECT.
This paper will be part of the TDM Special Issue on "The Changing Paradigm of Dispute Resolution and Investment Protection in Post-soviet and Greater Eurasian Space". More information here www.transnational-dispute-management.com/news.asp?key=1745