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Download Freya Baetens - The Arbitration Institute of the Stockholm Chamber
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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
