On 18 December 2024,
an ICSID arbitral tribunal rendered an intra-EU Energy Charter Treaty (ECT)
investor-state award ordering Germany to pay damages to Austrian claimants
Strabag SE’s subsidiaries Erste Nordsee-Offshore Holding (NOH) GmbH and Zweite
NOH GmbH. The dispute arose from losses incurred by the Austrian investors
following unexpected, retrospective multiple amendments governing the
development of offshore windfarms in the Northern and Baltic Sea, in particular
of the German Renewable Energy Sources Act. These amendments abolished not only
the existing feed-in-tariff regime for renewable energy projects but replaced
existing rights to obtain permits for the offshore projects with a centralized
public tender procedure. The ICSID tribunal unanimously upheld its jurisdiction
despite the intra-EU law objections submitted by Germany as preliminary
objection under Article 41 (5) ICSID Arbitration Rules (2006) and later during
the ongoing proceedings relying on additional arguments based on the Komstroy
and PL Holdings judgments. This is the first ever investor-state adverse
arbitration award against Germany. On 31 January 2025, Germany filed a request
for rectification of the award, which led to a decision concerning the stay of
enforcement on 10 March 2025. On 4 April 2025, the subsidiaries of Strabag SE
have filed their petition to recognize and enforce the ICSID arbitral award
against Germany with the US District Court for the District of Columbia. In
parallel, Germany has formally withdrawn from the ECT effective as of 20
December 2023.