ЛЕГІТИМНІ ОЧІКУВАННЯ ІНВЕСТОРІВ У СФЕРІ ВІДНОВЛЮВАНОЇ ЕНЕРГЕТИКИ

Abstract

The article aims at studying the approaches of international investment tribunals to the definition and protection of the legitimate expectations of investors in the renewable energies sector in case where a host state changes or cancels the previously established investment incentive schemes. The author also provides recommendations for Ukrainian authorities regarding the treatment of investors in order to settle existing conflicts and prevent them in future. The research methodology consists of the system-structural method, methods of analysis and synthesis, comparative and prognostic methods. At the beginning of the 21st century, many countries (including those in the European Union) enacted schemes, such as feed-in tariffs (FITs) or other special rates, to encourage long-term investment in the renewables. Confronted with a global financial crisis in 2008–2009, however, many of these countries reduced or eliminated altogether their original investment incentive frameworks. These amendments have prompted a significant number of investment disputes based on claims of breaches of investors' legitimate expectations over the stability of remuneration schemes, alleged to amount to an infringement of the fair and equitable treatment (FET), under the second sentence of Article 10 (1) of the Energy Charter Treaty. Ukraine now faces the same problem in its own relations with investors in renewable energies. Therefore, it is necessary to carefully study the existing (particularly negative) foreign experience in order to mitigate the risks of both losing disputes and inhibiting the development of the "green" energy sector. In order for the state not to bear the burden of compensation payments over the lawsuits by investors, changes in the regulatory regime should be proportionate, reasonable, non-arbitrary and in the public interest, but not radical or unpredictable. At the same time, any lawsuit by an investor poses a risk for the state, since the outcomes of the investment disputes resolution are unpredictable. In this regard, proper communication and negotiations with investors are extremely important to prevent lawsuits, which also carry the danger of creating a negative information background for green energy.