Transcript Freya Baetens - The Arbitration Institute of the Stockholm Chamber

CONFERENCE
Bridging the Climate Change Policy Gap:
The Role of International Law and Arbitration
Stockholm Chamber of Commerce, 21 November 2016
Legitimate expectations of green incentives?
Arbitral tribunals assessing modification and
termination of climate change policies
Freya Baetens
Creating a
stable
business
environment
Respecting
legitimate
expectations
Regime
interaction
Liberalising
green trade
Ensuring the
optimal use of
resources
Promoting
renewable
energy
Combating
climate
change
Combating climate change through the
promotion of renewable energy investment

United Nations Framework Convention on Climate Change (1994)

Kyoto Protocol (2005): Flexible Mechanisms  private investment

Joint Implementation

Clean Development Mechanism

Emissions Trading

Doha Amendment to the Kyoto Protocol (2012)

Paris Agreement (2015)

Local implementation:
Dispute
settlement?

EU Renewable Energy Strategy & State aid for renewable energy projects

Other schemes, e.g. Canada and India
Core question today
1.
Permitted as WTO subsidies but prohibited as EU State aid?
2.
Legitimate expectations of a stable business environment under the IIA but
not under the EU general principles?
3.
Unnecessary from a WTO perspective to secure compliance with climate
change laws or regulations?
Legitimate expectations under the IIA but not
under the EU general principles?
Respondent
Matter
Number of
cases
Substantive
rules
Procedural
rules
Bulgaria
PV solar
2
ECT
2 ICSID
Canada
wind
2
NAFTA
2 PCA
Czech
Republic
PV solar
7
ECT
7 PCA
Italy
PV solar
5
ECT
4 ICSID; 1 SCC
Spain
PV solar;
thermal solar
29
ECT
24 ICSID; 1 ad
hoc; 4 SCC
Legitimate expectations under the IIA but not
under the EU general principles?


Applying the IIA standard

Customary law basis

With or without explicit representation

Consistent, non-arbitrary and transparent State conduct

Effect, timeframe and impact of the regulatory change

State intentions and communication

Regulatory stability, legal certainty and availability of recourse
EU law in investor-State proceedings

EU law as fact or applicable law?

EU law in the renewable energy arbitrations
Aligning objectives

Establishing an international environmental court

Treaty drafting and amendment


Amendment of exiting institutions and agreements

Anticipation of regime interaction in future agreements
Institutional comity

Temporary lis pendens

Preliminary questions