The Fall of Icarus? How States Attract Renewable Energy Investment Claims

Publikation: Working paperForskning

Standard

The Fall of Icarus? How States Attract Renewable Energy Investment Claims. / Usynin, Maxim.

10. udg. Oslo : PluriCourts Research Paper, 2016.

Publikation: Working paperForskning

Harvard

Usynin, M 2016 'The Fall of Icarus? How States Attract Renewable Energy Investment Claims' 10 udg, PluriCourts Research Paper, Oslo. https://doi.org/10.2139/ssrn.2832757

APA

Usynin, M. (2016). The Fall of Icarus? How States Attract Renewable Energy Investment Claims. (10 udg.) Oslo: PluriCourts Research Paper. https://doi.org/10.2139/ssrn.2832757

Vancouver

Usynin M. The Fall of Icarus? How States Attract Renewable Energy Investment Claims. 10 udg. Oslo: PluriCourts Research Paper. 2016. https://doi.org/10.2139/ssrn.2832757

Author

Usynin, Maxim. / The Fall of Icarus? How States Attract Renewable Energy Investment Claims. 10. udg. Oslo : PluriCourts Research Paper, 2016.

Bibtex

@techreport{887aa78ac09346a0b4d8922d85cbe291,
title = "The Fall of Icarus? How States Attract Renewable Energy Investment Claims",
abstract = "The thesis is focused in the new type of claims in international investment law – claims concerning the revocation of incentive schemes in the photovoltaic (PV) solar sector. The general research question of this work is an inquiry why countries succeed and fail in their renewable policies (RE) judging by the amount of investment disputes against them. The interaction between the EU and Member States concerning RE policies has both political and legal dimensions. The political dimension includes several unsuccessful attempts of harmonization of support schemes. The legal dimension helps to achieve this harmonization by indirect means, such as the requirement on permissible state aid. With the introduction of PV solar investment cases, this process attracted a new discussion of the viability of investment treaty arbitration (ITA) within the EU. Member States appear solely responsible for their renewable policies, promoted in the bottom-up regime from supranational level. This situation leads to the gap between supranational governance and control within the EU law, from one side, and responsibility and accountability under international investment law, from the other. The greatest risk for the EU seems to be the independence of investment tribunals, when the Commission has limited means of influence on the arbitral decision-making process. The structure of the thesis will first discuss the EU-level policies relating to the incentivization of RE among its Member States and how these policies relate to the investment treaty regime and the rise in the number of ITAs based on changes to the support schemes in the PV solar sector specifically. Second, this thesis will conduct an empirical analysis of RE policies (abridged for focus on PV solar energy) in selected EU Member States by describing the background of regulation, response to EU Directives, further growth of incentives and the current reduction of support measures. Third, and based on a policy review, the thesis will analyze which national regulatory measures have formed the basis of investment treaty claims and examine what investment protections may be further invoked by specifically concentrating on the fair and equitable treatment (FET) standard due to its universal character and growing popularity in ITA. The final section of the thesis will identify the factors arising from the different number of ITA cases against EU Member States to date and provide insights into how these cases might be resolved and how they will affect future arbitral practice as well as future policy choices on the incentivization of RE among EU Member States.",
keywords = "Faculty of Law, photovoltaic (PV) solar investments, Feed-in tariffs, renewable energy, state aid, fair and equitable treatment, Energy Charter Treaty, intra-EU bilateral investment treaties (BITs), Investment Treaty Arbitration (ITA)",
author = "Maxim Usynin",
year = "2016",
doi = "10.2139/ssrn.2832757",
language = "English",
volume = "16",
publisher = "PluriCourts Research Paper",
edition = "10",
type = "WorkingPaper",
institution = "PluriCourts Research Paper",

}

RIS

TY - UNPB

T1 - The Fall of Icarus? How States Attract Renewable Energy Investment Claims

AU - Usynin, Maxim

PY - 2016

Y1 - 2016

N2 - The thesis is focused in the new type of claims in international investment law – claims concerning the revocation of incentive schemes in the photovoltaic (PV) solar sector. The general research question of this work is an inquiry why countries succeed and fail in their renewable policies (RE) judging by the amount of investment disputes against them. The interaction between the EU and Member States concerning RE policies has both political and legal dimensions. The political dimension includes several unsuccessful attempts of harmonization of support schemes. The legal dimension helps to achieve this harmonization by indirect means, such as the requirement on permissible state aid. With the introduction of PV solar investment cases, this process attracted a new discussion of the viability of investment treaty arbitration (ITA) within the EU. Member States appear solely responsible for their renewable policies, promoted in the bottom-up regime from supranational level. This situation leads to the gap between supranational governance and control within the EU law, from one side, and responsibility and accountability under international investment law, from the other. The greatest risk for the EU seems to be the independence of investment tribunals, when the Commission has limited means of influence on the arbitral decision-making process. The structure of the thesis will first discuss the EU-level policies relating to the incentivization of RE among its Member States and how these policies relate to the investment treaty regime and the rise in the number of ITAs based on changes to the support schemes in the PV solar sector specifically. Second, this thesis will conduct an empirical analysis of RE policies (abridged for focus on PV solar energy) in selected EU Member States by describing the background of regulation, response to EU Directives, further growth of incentives and the current reduction of support measures. Third, and based on a policy review, the thesis will analyze which national regulatory measures have formed the basis of investment treaty claims and examine what investment protections may be further invoked by specifically concentrating on the fair and equitable treatment (FET) standard due to its universal character and growing popularity in ITA. The final section of the thesis will identify the factors arising from the different number of ITA cases against EU Member States to date and provide insights into how these cases might be resolved and how they will affect future arbitral practice as well as future policy choices on the incentivization of RE among EU Member States.

AB - The thesis is focused in the new type of claims in international investment law – claims concerning the revocation of incentive schemes in the photovoltaic (PV) solar sector. The general research question of this work is an inquiry why countries succeed and fail in their renewable policies (RE) judging by the amount of investment disputes against them. The interaction between the EU and Member States concerning RE policies has both political and legal dimensions. The political dimension includes several unsuccessful attempts of harmonization of support schemes. The legal dimension helps to achieve this harmonization by indirect means, such as the requirement on permissible state aid. With the introduction of PV solar investment cases, this process attracted a new discussion of the viability of investment treaty arbitration (ITA) within the EU. Member States appear solely responsible for their renewable policies, promoted in the bottom-up regime from supranational level. This situation leads to the gap between supranational governance and control within the EU law, from one side, and responsibility and accountability under international investment law, from the other. The greatest risk for the EU seems to be the independence of investment tribunals, when the Commission has limited means of influence on the arbitral decision-making process. The structure of the thesis will first discuss the EU-level policies relating to the incentivization of RE among its Member States and how these policies relate to the investment treaty regime and the rise in the number of ITAs based on changes to the support schemes in the PV solar sector specifically. Second, this thesis will conduct an empirical analysis of RE policies (abridged for focus on PV solar energy) in selected EU Member States by describing the background of regulation, response to EU Directives, further growth of incentives and the current reduction of support measures. Third, and based on a policy review, the thesis will analyze which national regulatory measures have formed the basis of investment treaty claims and examine what investment protections may be further invoked by specifically concentrating on the fair and equitable treatment (FET) standard due to its universal character and growing popularity in ITA. The final section of the thesis will identify the factors arising from the different number of ITA cases against EU Member States to date and provide insights into how these cases might be resolved and how they will affect future arbitral practice as well as future policy choices on the incentivization of RE among EU Member States.

KW - Faculty of Law

KW - photovoltaic (PV) solar investments

KW - Feed-in tariffs

KW - renewable energy

KW - state aid

KW - fair and equitable treatment

KW - Energy Charter Treaty

KW - intra-EU bilateral investment treaties (BITs)

KW - Investment Treaty Arbitration (ITA)

UR - https://www.duo.uio.no/handle/10852/49711

U2 - 10.2139/ssrn.2832757

DO - 10.2139/ssrn.2832757

M3 - Working paper

VL - 16

BT - The Fall of Icarus? How States Attract Renewable Energy Investment Claims

PB - PluriCourts Research Paper

CY - Oslo

ER -

ID: 233845944