How Was It: Wolters Kluwer (Romania) – Seminar on Litigation in Renewable Energy Area

How Was It: Wolters Kluwer (Romania) – Seminar on Litigation in Renewable Energy Area

Last week, on 10th of December, I have attended a very interesting Seminar organized by Wolters Kluwer Romania at the American Chamber of Commerce in Bucharest, on the hot topic of Litigation in Renewable Energy.

The seminar consisted in three presentations held by Adrian Iordache (attorney at law), who gave a presentation on the Romanian legal framework of the issue (Romania’s Renewables – Lessons in Legislative Risks), Iuliana Boghez (diplomat) who gave a presentation on the EU Energy Charter (A Game of Treaties: The EU Treaty concerning the Energy Charter) and Anna de Luca (academic) who spoke about investment protection and ICSID arbitration in the field of Renewable Energy (Energy Investment Protection> What is Available? How it Works? What Does it Cost?). Each of the presentation cause lively debates among the participants, most of them focused on the practical issue concerning investment protection, which should not be a surprise, given the fact that 99.9% of them were energy lawyers with targeted interests arising from the cases they were involved in.

But the practical aspects of litigation and arbitration concerning investments in renewable energy in Romania, were extremely interesting even for researchers, such as myself, especially since the topic of renewable energy investment is absent from local law journals and is more dealt with by the written media and a few NGO’s. I must admit that I got quite a few of interesting ideas for the update on my monograph on Romanian Energy Law. The conclusion was that due to the peculiarities  of the Romanian case and legislation, the chances to bring investment claims against the state are pretty slim, especially due to the fact that Romania managed not to undertake any personal/nominal obligation towards any investor.

 

Bellow I am summarizing some of the ideas that I have gathered during the presentations/discussions:

Adrian Iordache:

  • no Green Certificates were sold during the summer of 2015
  • there was no plan B for Green Certificates
  • new investments are practically gone due to changes in the application of the support scheme
  • the Green Certificates market collapsed due to lack of incentives for investors, because it was not open to intermediaries, drop in demand for Green Certificates (due to NRAE’s powers to establish mandatory quotas and to exemptions granted to some of the large industrial energy consumers).
Iuliana Boghez:
  • usually EU states are sued by EU investors
  • does the European Charter Treaty apply to such cases or only to EU v. non-EU entities – normally the ECT is not for internal energy policies and investments
  • European Commission takes the view that arbitral tribunals under ECT do not have jurisdiction, but the CJEU.
  • disputes between Member States may occur in front of CJEU but only if states are investors.
  • arbitral tribunals took the opposite view: see Electrobel v. Hungary and Eastern Sugar v. Czech Republic
  • enforcing awards under ICSID infringe EU competition law on state aid: Micula v. European Commission
Anna de Luca:
  • the protection is for post-established investment
(Disclaimer: The ideas written here might not correspond with those of the speakers and do not bind the speakers in any way. They are simply the transcript of my personal notes.)

 

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