• Charanne case: investors defeated in first ECT solar claim arbitral award

      Baltag, Crina (2018-01-01)
      There are over thirty arbitrations based on the provisions of the Energy Charter Treaty (‘ECT’) registered against Spain and arising out of the photovoltaic solar electricity incentives granted by Spain to its investors in this renewable energy field. Promoted under the slogan ‘The sun can be yours’, the incentives granted by Spain attracted a record number of investments. The first arbitral award issued in this series of cases concerned the dispute between Charanne B.V. and Construction Investments S.à.r.l, as Claimants, and Spain, as Respondent. While the arbitral tribunal upheld jurisdiction, it rejected Claimants’ claim and dismissed the allegations of breaches of fair and equitable treatment and expropriation standards under the ECT. Although this arbitral award is not binding on subsequent arbitral tribunals, the reasoning of the tribunal in the Charanne case is of utmost importance as it confirms that the ECT is available for intra-European Union disputes. On the other hand, it is interesting to see how the other cases based on the same regulatory scheme will develop, as the tribunal in the Charanne case dismissed Claimants’ claims in full.
    • The Energy Charter Treaty and the intra-EU treaty objection post Charanne and REEF cases: the latest developments in Blusun v. Italy

      Baltag, Crina (2018-05-01)
      Until 2010, the Energy Charter Treaty (ECT) was relied on in less than thirty investment arbitration cases. Fast-forward seven years and there are more than one hundred cases. Most of these cases arise out of the repeal of the incentives granted to photovoltaic solar electricity investments under the EU regulations and majority of such disputes necessarily involve an investor of an European Union (EU) Member State, as Claimant, and an EU Member State, as Respondent. As a rule, the European Commission requested participation as amicus curiae in these cases and argued that the ECT is not meant to be applied between the EU Member States, as Contracting Parties to the ECT. Such claim is necessarily based on the fact that the ECT was signed by both the EU (the European Communities at that time) and the EU Member States because of the shared competences under the EU Law in matters addressed by the ECT. Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italy is yet another case in which the Tribunal rejects this argument and concludes that the ECT was entered into by the EU Member States in their own capacity and no ‘disconnection clause’ was included in the ECT to prevent the intra-EU application of the ECT.
    • Not hot enough: cooling-off periods and the recent developments under the Energy Charter Treaty

      Baltag, Crina (National Law University, Jodhpur, 2017-07-01)
      Cooling-off provisions in international investment agreements guarantee that investors and host States resolve their disputes in the most efficient manner. Aimed at offering the parties the opportunity to amicably settle their differences, cooling-off provisions remain a controversial issue in the jurisprudence on international arbitral tribunals. Arbitral tribunals are still split between considering the cooling-off provision as a procedural requirement or as an admissibility or jurisdictional requirement. Each of these positions triggers different practical consequences, with serious outcomes for the arbitral process.This note addresses the latest developments concerning the cooling-off provision under one international investment agreement–the Energy Charter Treaty.
    • TTIP negotiations in the shadow of human rights and democratic values

      Stanford, Ben; Yiannaros, Andreas C.; Nyombi, Chrispas (Sweet and Maxwell, 2016-09-01)
      In early 2013, based on the recommendations of the EU–US, High Level Working Group on Jobs and Growth, the presidents of the European Council, the European Commission (the Commission) and the US announced the initiation of negotiations on a major free trade agreement between the two blocs, termed the Transatlantic Trade and Investment Partnership (TTIP). The TTIP initiative promises significant economic development for the Transatlantic Free Trade Area (TFTA) and provision for investor–state dispute settlement (ISDS), which is mainly associated with international arbitration under the International Centre for the Settlement of Investment Disputes (ICSID). Respondents to a public consultation on TTIP, representing a wide spectrum of EU civil society organisations, expressed concern over ISDS’s impact on EU Member States’ right to regulate in the public’s interest, if investors are armed with the right to launch international proceedings to challenge national policy. Similar concerns were expressed over the secretive nature of the negotiations, with many critics pointing to democratic values and human rights as the bedrock of a civilised society. These concerns cast a shadow of uncertainty over the intended and unintended consequences of TTIP and, in particular, its encroachment on democratic values. In response to the rejection of ISDS, the Commission released proposals for an international investment court in August 2015. We argue that these reforms are merely cosmetic and are unlikely to alleviate some of the concerns raised over ISDS and, in particular, its intrusion on national public policy. The aim of this article is threefold. First and foremost, it examines the nature of the TTIP proposals with particular emphasis on the international investment court. The aim is to highlight how the secretive negotiations have undermined the most basic notions of democracy such as transparency and sovereignty. Secondly, it highlights areas where the fundamental principles of human rights have been undermined by the TTIP negotiations. Thirdly, the proposal for an international investment court is critiqued, especially on the inclusion of broad fair and equitable treatment (FET) standards that are likely to promote the same unfettered rights as those found under ISDS. Ultimately, a circumspect conclusion that ties together the various strands of argument through the paper is reached.