Recent Awards in Spanish Renewable Energy Cases and the Potential Consequences of the Achmea Judgment for Intra-EU ECT Arbitrations

Abstract

Regulatory changes to the Spanish renewable energy support scheme have given rise to more than 30 ECT arbitration cases. Although Spain prevailed in the first two cases decided in 2016, investors were successful in two cases decided in 2017 and early 2018. This contribution describes and analyzes the findings of these latter two cases, Eiser v. Spain and Novenergia v. Spain. As the number of awards in renewable energy cases increases, one can discern emerging patterns in ECT jurisprudence concerning renewable energy. In addition to the two Spanish ECT cases, this contribution also examines the potential consequences of the Achmea judgment of the Court of Justice of the European Union for intra-EU ECT arbitration from both an EU law and public international law perspective. The authors conclude that the Eiser and Novenergia awards solidify the view that sudden, unexpected policy changes that are applied retroactively and which have a significant negative impact on investments will likely be considered as breaches of the ECT.