Renewable energy arbitration against spain in the light of court of justice of the european union judgment in achmea case

Abstract

The promotion and development of investment in renewable energy in Spain have caused numerous investment arbitration demands induced by the frustration of investors’ expectations due to the reshaping of the extremely generous remuneration regime that has attracted a large volume of foreign investment. The purpose of this contribution is to think over the future of this controversial investment arbitration in the light of the recent CJEU ruling in the Slovak Republic v. Achmea case. In this matter, the Court determines the incompatibility of investor-State dispute settlement mechanism established by the Netherlands-Slovakia Bilateral Investment Treaty with the principle of autonomy of European Union law. Based on this premise, this analysis pretends to determine whether the investment arbitration faced by Spain could be terminated given the jurisprudence settled in the Achmea case, as they constitute similar investor-State dispute settlement mechanisms, with the only difference that they are based on the Energy Charter Treaty.