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Legitimate expectations of green incentives? Legitimate expectations of green incentives?

Legitimate expectations of green incentives? - PowerPoint Presentation

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Legitimate expectations of green incentives? - PPT Presentation

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

law change energy climate change law climate energy solar expectations renewable state legitimate iia ect general principles amendment icsid stable business regulatory

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Slide1

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