Antaris v. Czech Republic (Part 2): on merits, tribunal finds that investment protection does not extend to “speculative” investors

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Antaris v. Czech Republic (Part 3): Gary Born sees clearly guaranteed FiT payments and deplores use of “margin of appreciation” doctrine

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Antin v. Spain (Part 1): arbitrators see extensive due diligence by investors in concentrated solar power sector, and reject a series of jurisdictional and admissibility objections

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Antin v. Spain (Part 2): Spain breached investors’ legitimate expectations when eliminating essential features of regulatory framework despite previous representations of legal stability

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[UPDATED with award] Spain suffers another nine figure loss, this time in Zuleta-chaired Energy Charter Treaty arbitration

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In now-public Masdar award, tribunal says Achmea ruling has “no bearing” upon ECT dispute, finds that Spain reneged on specific commitments, but disagrees on appropriateness of discounted cash-flow method  

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Newly-released documents in Ballantine v. Dominican Republic case reveal parties’ debates over treaty time-bar and dual-nationality provisions, alleged environmental justifications, and emergency site inspection order

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Beechey, Born and Stern agree on FET breach, but not on damages; tribunal opines that recent ECJ judgment has “no bearing upon” Energy Charter Treaty-based claims

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Czech Republic prevails in latest treaty-based solar arbitration to reach a final ruling; we profile remaining cases where rulings are still expected

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Canada fails in bid to set aside unfavourable NAFTA award from Bilcon quarry dispute – damages ruling looms in $443 million compensation fight

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[UPDATED with full analysis] – Another challenge to Gary Born is rejected, this time by Bruno Simma and Daniel Bethlehem in the KS Invest & TLS Invest v. Spain case

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Reasons for dismissal of recent attempt to disqualify arbitrator Gary Born come to light

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ANALYSIS: Spain immediately seeks to test whether ECJ judgment reaches to Energy Charter Treaty cases; however request to reopen two closed proceedings also raises specter of arbitrator challenge

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Award in latest Spain loss surfaces, and SCC tribunal is seen to have taken jurisdiction over Novenergia’s claims, but gives effect to Energy Charter Treaty’s tax measures carve-out

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On merits and damages, latest Spanish renewables award finds breach of FET in “radical” departure from earlier regulatory regime and a DCF-based valuation yields €53m in compensation for Novenergia

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After aquatic disaster that released invasive species into western U.S. environment, and an investigation that flagged investor shortcomings, a Canadian firm complains that it is being mistreated and discriminated against

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Breaking: Spain is held liable in another renewables case; tribunal finds government in breach of Energy Charter Treaty in a new award, ordering 53 million EUR in damages

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Bulgaria faces its first known arbitration claim from a foreign investor in renewable energy generation sector

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As another Spain award looms, four more previously-confidential renewables cases surface; potential liability for all pending claims now exceeds $9.5 billion

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Czech solar award comes to light, offering clarity as to tribunal’s handling of jurisdictional questions – including whether “investor” must be defined in light of domestic law

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For majority of Kaufmann-Kohler and Tomka in Czech solar case, investor had no legitimate expectation to fixed feed-in-tariffs

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In dissent in Czech solar case, Gary Born sees a legitimate expectation to fixed feed-in-tariffs, and complains that co-arbitrators deprive state of ability to provide meaningful “legislative guarantees” to foreign investors

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European Commission warns of potential action over Spain’s payment of investment treaty awards in renewable energy cases

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Co-arbitrators declare themselves to be “equally divided” on challenge to third tribunal member, thus putting ICSID in the driver’s seat

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Czech Republic emerges victorious in first of a string of investment treaty arbitrations over solar energy changes

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Spain follows up on its annulment strategy by filing a request to disqualify arbitrator

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Looking Back: Fortier-chaired tribunal in Santa Elena v. Costa Rica found environmental objectives irrelevant to compensation under international law

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Stay of enforcement of $370+ million award is lifted, as ICSID panel does not see clear promise by Ecuador to swiftly comply if award is not overturned, nor a compelling case of economic hardship

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Oil consortium investor (Perenco) that pursued its own BIT arbitration fails in belated bid to be treated as alter ego of another claimant (Burlington) in order to escape environmental counterclaim process

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ANALYSIS: majority of Spain’s Supreme Court dismisses domestic challenges against 2014 renewables regulatory framework – and sees no relevance of recent Eiser v. Spain ICSID award – but dissenting views also aired

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Italy claims: A trio of Energy Charter Treaty arbitrations emerge in Stockholm, a tribunal is appointed at ICSID, and some repeat-players are beginning to emerge

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In lead-up to hearings in Lone Pine v. Canada NAFTA fracking arbitration, USA and Mexico offer views (and some support for certain of Canada’s positions), while potential amici seek leave to intervene

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ANALYSIS: Dutch appeal court sees no grounds to set aside Chevron v. Ecuador jurisdictional decision and interim measures

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Looking Back: Methanex v. USA established iconic ‘police powers’ test, admitted first-ever amicus brief, and delved into use of WTO case-law, admissibility of unlawfully-obtained evidence, and NAFTA’s ‘relating to’ requirement

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Looking Back: Methanex tribunal deferred to scientific study undertaken by University of California, and rejected jurisdiction after finding no breaches on the merits

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As Spain seeks to annul Energy Charter Treaty award, government hires outside law firm and complains about arbitrator’s relationship with damages experts 

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ICSID tribunal denies third party request for release of witness statements and expert reports in controversial mining case

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In newly-unearthed Energy Charter Treaty award (Isolux v. Spain), arbitrators grapple with denial of benefits, nationality planning, tax carve-out and EU law issues

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In now-public Isolux v. Spain award, measures that later breached investor protections in Eiser case were not deemed to breach Isolux’s legitimate expectations

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Shortly after Blusun v. Italy award comes to light, a trio are chosen to hear investors’ annulment request

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Arbitrators express doubts about a right to security for costs, but bankrupt claimant’s “after-the-event” insurance policy obviates any need to rule definitively

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As Gabriel Resources v. Romania arbitration plays out, arbitrators have weighed in on power to order “emergency” interim relief in relation to local tax and fraud investigations

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In Blusun v. Italy award, intra-EU objection is rejected, ECT’s environmental impact provision is interpreted, and concerns about lawfulness of investment are overcome due to repeated “acts of approval”

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ANALYSIS: in new award, Italian renewables changes appear less dramatic than those in recent Spain case, thus leading to failure of Blusun’s FET claim; arbitrators disagree on expropriation assessment

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Hearings loom in previously-unpublicized Stockholm Energy Charter Treaty claim, as another investor pursues ICSID claim

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Italy fails to secure summary dismissal of Eskosol solar case, despite protests that it defeated “identical” ECT claim by investor’s majority shareholder

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Ecuador Round-Up: As remaining bilateral investment treaties are terminated, new developments come to light in ICSID and UNCITRAL cases

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In depth: arbitrators in Eiser award deem ECT to protect against “total” and unreasonable regulatory change, but tax measure is excluded; Spain fails in bid to admit favourable SCC award into evidence

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Spain’s arbitral winning streak comes to a halt, as ICSID tribunal awards 128 million euro (plus interest) for changes made in solar sector

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Czech Republic round-up: Swiss investor lodges arbitration at ICSID, as unrelated U.A.E. investor also threatens claim; various other arbitrations remain on foot

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EU Court of Justice finds fault with Germany’s grant of a revised permit to Vattenfall, casting a cloud over earlier settlement of ICSID case

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Looking Back: In SD Myers v. Canada case, arbitrators rule that temporary ban on cross-border hazardous waste shipment had protectionist intent

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Looking Back: At damages phase, arbitrators in SD Myers v. Canada case quantified foregone income due to border closure; role of NGO-driven political risk also touched upon

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As struggling miner pursues outside finance for arbitration against Colombia, dissident shareholders object to percentage of potential recovery that would accrue to funders

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Looking Back: Ethyl v. Canada case drew early public attention to previously obscure arbitration process, and settled after tribunal’s jurisdiction ruling

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CAFTA tribunal confirms power to order a stay of its proceedings, but finds claimants’ parallel set-aside request an insufficient basis for doing so

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Burlington tribunal confirms power to reconsider decisions, but rejects request on merits; earlier expropriation finding supplemented with further ruling on unlawfulness

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Familiar disagreements on valuation date and ex post data arise in Burlington award, alongside new disagreement on contribution to losses

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ANALYSIS: Successful counterclaim in Burlington v. Ecuador breaks new ground, as tribunal has to evaluate quantum of environmental damage

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Looking Back: Tecmed v. Mexico breaks ground in adopting expansive reading of the Fair and Equitable Treatment and upholding protection of investors’ “legitimate expectations”

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Ecuador ordered to pay $379 million for expropriation of US investor’s oil blocks; state says it was awarded damages for environmental counterclaim, and plans annulment of final award

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Looking Back: Metalclad v. Mexico tribunal finds expropriation and FET breaches in landfill approvals process

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Claimants seek set-aside of interim ruling in CAFTA arbitration on Costa Rican sea turtle conservation measures

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CAFTA tribunal weighs in with interim award in case arising out of Costa Rica’s sea turtle conservation measures

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Arbitrators selected to hear UNCITRAL CAFTA case and ICSID Energy Charter Treaty dispute

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