Investment Arbitration and EU Law in the Aftermath of Renewable Energy Cuts in Spain

摘要

During the last five years the sector of renewable energies in Spain has gone through several regulatory changes leading to cuts and instability. As a result, investors have brought thousands of claims for damages against that country. The claims are embedded within a context of a so-called "regulatory polyarchy", where various normative systems, developed under different premises and governed by different rules and principles, call for application. On the one hand, national investors are bound to domestic courts, where they have lodged thousands of claims. On the other hand, foreign investors have submitted their claims to investment arbitration, claims that are being governed by procedures and premises which are different from those under national law and that may even come into conflict, both in form and in substance, with European Union law. Different outcomes may therefore arise, product of the regulatory paradox which is found in energy investment law in this era of globalization. Indeed, investments occur continuously across national borders, but their regulation is still being carried out in separate legal compartments and at different levels: International, regional and national. This may lead to divergent and unwanted outcomes, as explained in the following article.