Arbitral tribunals assessing modification and termination of climate change policies Freya Baetens CONFERENCE B ridging the Climate Change Policy Gap The Role of International Law and Arbitration ID: 614809
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Legitimate expectations of green incentives?Arbitral tribunals assessing modification and termination of climate change policies
Freya Baetens
CONFERENCE
B
ridging
the
Climate
Change Policy Gap:
The Role of International Law and Arbitration
Stockholm Chamber of Commerce
,
21 November 2016Slide2
Combating climate change
Creating a stable business environment
Ensuring the optimal use of resources
Promoting renewable energy
Respecting legitimate expectations
Liberalising
green trade
Regime interactionSlide3
Combating climate change through the promotion of renewable energy investmentUnited Nations Framework Convention on Climate Change (1994)Kyoto Protocol (2005): Flexible Mechanisms private investmentJoint ImplementationClean Development
MechanismEmissions TradingDoha Amendment to the Kyoto Protocol (2012)
Paris Agreement (2015)
Local implementation:
EU Renewable Energy Strategy & State aid for renewable energy projects
Other schemes, e.g. Canada and India
Dispute settlement?Slide4
Core question todayPermitted as WTO subsidies but prohibited as EU State aid?Legitimate expectations of a stable business environment under the IIA but not under the EU general principles?Unnecessary from a WTO perspective to secure compliance with climate change laws or regulations?Slide5
Legitimate expectations under the IIA but not under the EU general principles?Respondent
MatterNumber of casesSubstantive rulesProcedural rules
Bulgaria
PV
solar
2
ECT
2 ICSID
Canada
wind2
NAFTA2 PCACzech RepublicPV solar
7ECT7 PCA
ItalyPV solar5
ECT4 ICSID; 1 SCCSpain
PV solar; thermal solar
29
ECT
24 ICSID; 1
ad hoc
; 4 SCCSlide6
Legitimate expectations under the IIA but not under the EU general principles?Applying the IIA standard Customary law basis
With or without explicit representationConsistent, non-arbitrary and transparent State conductEffect, timeframe and impact of the regulatory changeState intentions and communicationRegulatory 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 arbitrationsSlide7
Aligning objectivesEstablishing an international environmental courtTreaty drafting and amendmentAmendment of exiting institutions and agreementsAnticipation of regime interaction in future agreementsInstitutional comityTemporary
lis pendensPreliminary questions