Investment Arbitration in the Energy Sector Nicolas Angelet Université Libre de Bruxelles (ULB)

what does renewable energy mean to investment law and arbitration?

The Producer – Consumer Divide Old : Producer >< Consumer Investment Law Protects Industrialized Oil-Consuming Countries against Oil- Producing Countries New: Producer = Consumer

The Producer – Consumer Divide New : Producer = Consumer States regulate at both ends of the chain: production consumer protection and service of general interest

The Economy – Ecology Divide Old : Energy = Economy New :Energy = Ecology

The Economy – Ecology Divide New : Energy = Ecology Regulation and subsidisation Domestic and international Investment and regulation in the global interest

The Capex – Opex Divide Old : Capital and Operational Expenditure New:Capital Expenditure

The Capex – Opex Divide New: Capital Expenditure Parameters of profitability fixed upfront Risk element in investment is largely regulatory

Challenges for Investment Law Fair & Equitable Treatment Nature of a BIT Balancing capital-exporting imperialism with host State sovereignty Protecting private interests against undue State interference

Challenges for Investment Law Fair & Equitable Treatment Protection against lack of transparency, incoherence and roller-coaster amendments in the law Protection of legitimate expectations No guarantee of absolute legal stability

Challenges for Investment Law Fair & Equitable Treatment Renewable Energy Public interest may require more regulatory changes Apex : investors need more stability

Challenges for Investment Law Fair & Equitable Treatment Renewable Energy Sophisticate the FET standard ?

Challenges for Investment Law Fair & Equitable Treatment : CETA and TTIP TTIP, EC Draft, Article 2 right to regulate through measures necessary to achieve legitimate policy objectives, such as the protection of public health, environment, social or consumer protection no protection against regulatory changes affecting profits Absent a specific commitment under law or contract, subsidies may be withdrawn

Challenges for Investment Law Fair & Equitable Treatment “Necessary” : WTO AB, Korea – fresh chilled and frozen beef various meanings : from inevitability to appropriateness etc. always a balancing test : – contribution to the realization of the legitimate aim pursued – importance of the common interests and values protected – possible impact on other interests or principles

Challenges for Investment Law “Necessary” as a balancing test Sovereignist and democratic perspective Sustainable development perspective : Preamble + interpretation

Challenges for Investment Arbitration Investor-State Dispute Settlement Old and Present : “private” arbitration Future : – CETA : Public international lawyers – TTIP, EC Proposal: judicial mechanism

Challenges for Investment Arbitration Investor-State Dispute Settlement Renewable energy Technicality -> arbitration? Public interest and embedment in international legal order -> judiciary? The WTO Model

Thank you