Regulatory changes to the Spanish renewable energy support scheme have
given rise to more than 30 ECT arbitration cases. Although Spain prevailed in
the first two cases decided in 2016, investors were successful in two cases
decided in 2017 and early 2018. This contribution describes and analyzes the
findings of these latter two cases, Eiser v. Spain and Novenergia
v. Spain. As the number of awards in renewable energy cases increases, one
can discern emerging patterns in ECT jurisprudence concerning renewable energy.
In addition to the two Spanish ECT cases, this contribution also examines the
potential consequences of the Achmea judgment of the Court of
Justice of the European Union for intra-EU ECT arbitration from both an EU law
and public international law perspective. The authors conclude that the Eiser
and Novenergia awards solidify the view that sudden, unexpected
policy changes that are applied retroactively and which have a significant
negative impact on investments will likely be considered as breaches of the
ECT.