PCA Case No. 2014-03 11 October 2017
Ad hoc Arbitration
between
Mr. Jürgen Wirtgen
Mr. Stefan Wirtgen
Mrs. Gisela Wirtgen
JSW Solar (zwei) GmbH & Co. KG
and
The Czech Republic
FINAL AWARD
ARBITRAL TRIBUNAL
Professor Gabrielle Kaufmann-Kohler (Presiding Arbitrator)
Mr. Gary Born
Judge Peter Tomka
Secretary of the Tribunal
Rahul Donde
ii
TABLE OF CONTENT
TABLE OF ABBREVIATIONS......................................................................................................vii 
I. THE PARTIES........................................................................................................................1 
A. The Claimants.......................................................................................................................1 
B. The Respondent ...................................................................................................................3 
II. MAIN FACTS .........................................................................................................................4 
A. Background...........................................................................................................................4 
B. Support Scheme...................................................................................................................5 
1. Tax Incentives......................................................................................................................5 
2. Act 180.................................................................................................................................6 
C. The Claimants’ investments..............................................................................................11 
1. Struhařov ...........................................................................................................................11 
2. Světlá .................................................................................................................................12 
3. Vernéřov ............................................................................................................................13 
D. Changes in the PV Sector .................................................................................................13 
E. Amendments to the Support Scheme..............................................................................14 
1. Abolishing the 5% Brake Rule...........................................................................................14 
2. Limiting the Support Scheme to Small PV Plants.............................................................14 
3. Abolishing the Tax Incentives............................................................................................15 
4. Introducing the Solar Levy.................................................................................................15 
F. Consolidation of the Support Scheme and further legislation.....................................17 
G. Decisions of the Czech Courts .........................................................................................17 
1. Decision of the Czech Constitutional Court ......................................................................17 
2. Decisions of the Supreme Administrative Court ...............................................................20 
III. PROCEDURAL HISTORY...................................................................................................21 
A. Written Phase......................................................................................................................21 
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B. Hearing on Jurisdiction and Merits..................................................................................27 
C. Post-Hearing Phase ...........................................................................................................28 
IV. POSITIONS OF THE PARTIES AND RELIEF REQUESTED............................................33 
A. Summary of the Claimants’ Position ...............................................................................33 
B. The Claimants’ Request for Relief....................................................................................34 
C. Summary of the Respondent’s Position..........................................................................36 
D. The Respondent’s Request for Relief..............................................................................37 
V. ANALYSIS............................................................................................................................38 
A. Preliminary Matters............................................................................................................38 
1. Applicable Procedural Law................................................................................................38 
2. Law Governing Jurisdiction ...............................................................................................39 
3. Law Governing the Merits .................................................................................................40 
a. The Claimants’ position .....................................................................................................40 
b. The Respondent’s position................................................................................................41 
c. The Commission’s position ...............................................................................................42 
d. Analysis..............................................................................................................................43 
4. Jura Novit Curia.................................................................................................................45 
5. Relevance of Previous Decisions......................................................................................46 
B. Jurisdiction .........................................................................................................................46 
1. Is Claimant 4 an Investor?.................................................................................................48 
a. The Respondent’s position................................................................................................48 
b. The Claimants’ position .....................................................................................................50 
c. Analysis..............................................................................................................................52 
(i) Ordinary meaning and context ...................................................................................55 
(ii) Object and purpose of the Treaty...............................................................................58 
(iii) Treaties with third States ............................................................................................60 
iv
(iv) Decisions of other tribunals ........................................................................................63 
(v) Conclusion ..................................................................................................................64 
2. Does EU Law Deprive this Tribunal of Jurisdiction?.........................................................65 
a. The Commission’s position ...............................................................................................65 
b. The Claimants’ position .....................................................................................................65 
c. The Respondent’s position................................................................................................67 
d. Analysis..............................................................................................................................67 
C. Application of the Doctrine of Police Powers.................................................................72 
D. Fair and Equitable Treatment............................................................................................74 
1. The Claimants’ Position.....................................................................................................74 
a. The Respondent attracted and then deliberately harmed solar PV investors..................74 
b. The Claimants’ legitimate expectations ............................................................................75 
c. Specific guarantees or representations made to the Claimants.......................................75 
d. The Solar Levy effectively ended the feed-in tariffs..........................................................76 
e. Guarantees in respect of taxation .....................................................................................76 
f. Expectation to receive a 15-year payback........................................................................77 
g. “Windfall profits”.................................................................................................................77 
h. Decisions of the Czech courts...........................................................................................78 
i. Tariff reduction in the lease ...............................................................................79 
j. The Claimants’ due diligence ............................................................................................79 
k. Opinion of Ueltzhöffer Balada ...........................................................................................79 
l. State aid.............................................................................................................................80 
m. The legislative changes were not foreseeable..................................................................80 
n. The Decision......................................................................................................................81 
2. The Respondent’s Position ...............................................................................................81 
a. The Respondent did not deliberately attract PV investors................................................81 
v
b. The Claimants’ expectations .............................................................................................82 
c. Specific guarantees or representations made to the Claimants.......................................84 
(i) Choice of two forms of subsidies................................................................................84 
(ii) ERO price decisions ...................................................................................................84 
(iii) Contracts with grid operators......................................................................................84 
(iv) ERO licenses ..............................................................................................................84 
(v) Other documents ........................................................................................................85 
d. The Solar Levy did not end the feed-in tariffs ...................................................................85 
e. Guarantees in respect of taxation .....................................................................................85 
f. Expectation to receive a simple return on investment......................................................86 
h. Decisions of the Czech courts...........................................................................................87 
i. Tariff reduction in the lease ...............................................................................88 
j. The Claimants’ due diligence ............................................................................................88 
k. Opinion of Ueltzhöffer Balada ...........................................................................................89 
l. State aid incompatible with EU Law..................................................................................90 
m. The legislative changes were foreseeable........................................................................91 
n. The measures taken by the Czech Republic were reasonable........................................91 
o. The Decision......................................................................................................................93 
3. The Commission’s Position...............................................................................................93 
4. Analysis..............................................................................................................................93 
a. Act 180...............................................................................................................................94 
b. Context of introduction of Solar Levy and withdrawal of income tax incentives...............99 
(i) Withdrawal of the Tax Incentives..............................................................................105 
(ii) Introduction of the Solar Levy...................................................................................106 
c. Legitimate expectations...................................................................................................109 
(i) Solar Levy .................................................................................................................111 
vi
(ii) Tax Incentives...........................................................................................................117 
d. Deliberate harm ...............................................................................................................119 
E. Full Protection and Security ...........................................................................................122 
1. The Claimants’ Position...................................................................................................122 
2. The Respondent’s Position .............................................................................................123 
3. Analysis............................................................................................................................123 
F. Umbrella Clause ...............................................................................................................124 
1. The Claimants’ Position...................................................................................................124 
2. The Respondent’s Position .............................................................................................125 
3. Analysis............................................................................................................................126 
G. Conclusion ........................................................................................................................128 
VI. COSTS ...............................................................................................................................129 
VII. DECISION ..........................................................................................................................132 
vii
TABLE OF ABBREVIATIONS
Act 180 / Act on
Promotion
Act No. 180/2005 Coll., on Promotion of Electricity Production from
Renewable Energy Sources and on Amendments to Certain Laws
Act 165/2012 Act No. 165/2012 Coll., on Promotion of Sources of Energy and
Amending Certain Acts
Act 310/2013 Act No. 310/2013 Coll.
Act 346/2010 Act No. 346/2010 Coll., Amending the Income Tax Act, as amended,
and Other Related Acts
Act 586/1992 /
Income Tax Act
Act 586/1992 Coll. on Income Tax
Amicus Curiae
Submission
EC’s Amicus Curiae Submission of 11 December 2015
BIT / Treaty Treaty between the Federal Republic of Germany and the Czech and
Slovak Federal Republic on Encouragement and Reciprocal Protection
of Investments of 2 October 1990
Commission’s
Application
EC’s Application to Intervene as a Non-Disputing Party of 11 July 2014
Commission Decision European Commission’s decision of 2 December 2016
Commission’s
Submission
European Commission’s submission of 17 February 2017
EC / Commission European Commission
ECJ European Court of Justice
ER Expert report
ERO Energy Regulatory Office
EU European Union
Exh. C- Claimants’ Exhibit (Documentary exhibits)
Exh. CLA- Claimants’ Legal Authority
Exh. R- Respondent’s Exhibit (Documentary exhibits)
Exh. RLA- Respondent’s Legal Authority
FET Fair and Equitable Treatment
FIT Feed in Tariff
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
viii
ILC International Law Commission
ILC Articles ILC Articles on Responsibility of States for Internationally Wrongful
Acts, 2001
Income Tax Act Act No. 586/1992 Coll. on Income Taxes
kWp Kilowatt peak
MW Megawatts
NT National Treatment
Objections to
Jurisdiction
Respondent’s Objections to Jurisdiction dated 27 October 2014
PCA Permanent Court of Arbitration
PILA Swiss Federal Act on Private International Law
PO Procedural Order
Rej. Respondent’s Rejoinder dated 17 December 2015
Reply Claimants’ Reply Memorial dated 16 September 2015
RES Renewable Sources of Energy
RfA Claimants’ Request for Arbitration dated 24 June 2013
SoC Claimants’ Statement of Claim dated 18 July 2014
SoD Respondent’s Statement of Defense dated 20 March 2015
Solar Levy Levy introduced through Act No. 402/2010 Coll.
Technical Regulation Decree No. 475/2005 Coll. on Implementation of Certain Provisions of
the Act on Promotion of Exploitation of Renewable Energy Sources
Terms of Appointment Terms of Appointment of 3 March 2014
TFEU Treaty on the Functioning of the European Union
Tr. Transcript hearing on jurisdiction and merits
VCLT or Vienna
Convention
Vienna Convention on the Law of Treaties
WACC Weighted average cost of capital
WS Witness statement
1
I. THE PARTIES
A. THE CLAIMANTS
1. The first Claimant is Mr. Jürgen Wirtgen, , with domicile at
Germany (“Claimant 1”).
2. The second Claimant is Mr. Stefan Wirtgen, , with domicile at
, Germany (“Claimant 2”).
3. The third Claimant is Mrs. Gisela Wirtgen, , with domicile at
, Germany (“Claimant 3).
4. The fourth Claimant is JSW Solar (zwei) GmbH & Co. KG, a limited partnership
organized and existing under the laws of Germany, with domicile at Reinhard-WirtgenStraβe
2, 53578 Windhagen, Germany, registered with the commercial register in
Montabaur, Germany (“JSW” or “Claimant 4”).
5. Claimants 1-3 are shareholders of Claimant 4.
6. The Claimants and their investments have been illustrated as follows: being specified
that the three Czech power plants at issue in this arbitration — Struhařov, Světlá and
Vernéřov — are directly owned by three Czech special purpose vehicles set up for that
purpose.1
1
Rej., §168.
3
B. THE RESPONDENT
8. The Respondent is the Czech Republic (the “Republic”).
9. The Respondent is represented in this arbitration by:
Ministry of Finance
Independent Unit 9006
International Protection of Investments and Foreign Receivables
Petr Plášil
Marie Talašová
Markéta Filipová
Letenská 15
118 10 Praha 1
Czech Republic
Tel.: + 420 257 041 111
E-mail: petr.plasil@mfcr.cz
marie.talasova@mfcr.cz
marketa.filipova@mfcr.cz
Karolína Horáková
WEIL, GOTSHAL & MANGES S.R.O. ADVOKÁTNÍ KANCELÁŘ
Charles Bridge Center
Křižovnicke nam. 193/2
Prague, Czech Republic
Tel.: +420 22140 7303
Fax: +420 22140 7310
E-mail: karolina.horakova@weil.com
In addition, until 16 July 2015, the Respondent was represented by:
Stephen P. Anway
SQUIRE SANDERS (US) LLP
30 Rockefeller Plaza
New York, New York 10112
Tel.: +1 216 479 8279
E-mail: Stephen.Anway@squiresanders.com
David W. Alexander
SQUIRE SANDERS (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
United States of America
Tel.: +1 614 365 2801
E-mail: David.Alexander@squiresanders.com
Rostislav Pekař
Mária Lokajová
SQUIRE SANDERS, V.O.S., ADVOKÁTNÍ KANCELÁŘ
Václavské námestí 57/813
110 00 Prague 1
Czech Republic
4
Tel.: +420 221 662 289
E-mail: Rostislav.Pekar@squiresanders.com
Maria.Lokajova@squiresanders.com
Zachary Douglas
MATRIX CHAMBERS
Griffin Building
Gray’s Inn London
WC1R 5LN
Tel.: +44 020 7404 3447
E-Mail::zacharydouglas@matrixlaw.co.uk
From 17 July 2015, the Respondent has been represented by:
Paolo Di Rosa
ARNOLD & PORTER KAYE SCHOER LLP
601 Massachusetts, NW
Washington DC 20001
USA
E-mail:Paolo.DiRosa@apks.com
Dmitri Evseev
ARNOLD & PORTER KAYE SCHOER LLP
Tower 42
25 Old Broad Street
London EC2N 1HQ
United Kingdom
E-mail:Dmitri.Evseev@apks.com
II. MAIN FACTS
10. The following summary is meant to give a general overview of the present dispute. It
does not include all the facts which may be of relevance, particularly as they emerged
from the extensive evidence gathered at the hearing. To the extent relevant and useful,
additional facts will be addressed in the Tribunal’s analysis.
A. BACKGROUND
11. The Czech Republic came into existence on 1 January 1993 upon the dissolution of
the Czechoslovak Federation. It acceded to the European Union (“EU”) on 1 May
2004.
12. As a result of the accession, the Republic was required to harmonize its legal system
with EU law and transpose existing EU Directives into its national legislation.
5
13. One area where such transposition was required was the renewable energy sector. In
2001, through Directive 2001/77/EC,2
the EU had set non-binding indicative renewable
energy production targets for its Member States. These targets envisaged that the
share of renewable energy should be at or above 8% by 2010.3
In 2009, through
Directive 2009/28/EC, these targets were raised to 13% by 2020.4
14. The Czech Republic undertook to achieve an 8% share of production of electricity from
renewable sources of energy (“RES”) in its gross energy consumption by 2010.5
Discussions for devising the appropriate framework to meet this target started in 2002,
even before accession. These discussions continued in 2003 and 2004 when a draft
bill was prepared.
B. SUPPORT SCHEME
15. In March 2005, a “Support Scheme” for renewable energies came into effect.6
It
broadly consisted of two parts: the continuation of existing tax incentives (1) and the
enactment of Act 180 entitled “On the Support of Electricity Generation from
Renewable Energy Sources”7
(“Act 180”) (2).
1. Tax Incentives
16. Act No. 586/1992 Coll. on Income Taxes (the “Income Tax Act”),8
in force since 1993,
provided specific rules for calculating the corporate income tax of producers of
electricity from renewable sources of energy (“RES producers”). RES producers were
exempt from income tax in the year the plant was put into operation and for the
2
Exh. RLA-016, Directive 2001/77/EC.
3
Exh. C-28, Directive 2001/77/EC, Article 3.2, Annex.
4
Exh. C-29, Directive 2009/28/EC, Annex I.
5
Exh. RLA-016, Directive 2001/77/EC.
6
The Claimants use the term "Support Scheme" as a collective term for Act 180, the tax exemption
and the depreciation provisions of the Income Tax Act (SoC, §5).
7
Exh. C-31, Act 180/2005 Sb on the Support of Electricity Generation from Renewable Sources of
Energy and on Amendment of Some Other Acts (the Act on the Support of Use of Renewable
Sources); Exh. R-4. The Respondent titles Act 180 as “Act No. 180/2005 Coll., on Promotion of
Electricity Production from Renewable Energy Sources and on Amendments to Certain Laws” or “The
Act on Promotion”.
8
Exh. R-5, Act 586/1992 Coll.
6
following five years.9
Further, the Act provided preferential depreciation periods for
certain intangible assets of RES producers (the tax exemption and the preferential
depreciation period are collectively referred to as “the Tax Incentives”).
17. An Explanatory Report to a draft of a legislation that eventually became Act 180 dated
12 November 2003 (the “2003 Explanatory Report”) referred to these income tax
exemptions for RES producers.
2. Act 180
18. Act 180 was enacted on 31 March 2005 and entered into force on 1 August 2005. Act
180 supported the production of electricity from RES through a combination of tariff
and non-tariff mechanisms.
19. First, operators of the electricity grid were obliged to primarily connect facilities that
generated electricity from renewable energy sources:
“The operator of the transmission system or the operators of distribution
systems are obliged to primarily connect the devices according to section 3
(hereinafter referred to as the “devices”) to the transmission system or to
the distribution systems on their locality […]”.10
20. Grid operators were also under an obligation to purchase all the electricity generated
by RES producers for fixed prices or so-called feed-in tariffs:
“The operators of the local distribution systems and the operator of the
transmission system are obliged to buy out every electricity from the
renewable sources, to which the support applies, and to enter into the
contract on supply […]”.11
21. The Act did not contemplate compensating grid operators for the feed-in tariffs (“FITs”)
which they were to pay to the RES producers. These tariffs were funded through a
compulsory surcharge set by the Energy Regulatory Office (the “ERO”) in its yearly
9
Exh. C-30, The Income Tax Act, Part 1, Section 4(1)(e) (“Exempted from taxation shall be: […] e.
revenues from […] solar facilities […] in the calendar year in which they were put into operation for the
first time, and the five years immediately following.”).
10
Exh. C-31, Act 180/2005, Section 4(1).
11
Id., Section 4(4).
7
price decisions and invoiced to all electricity consumers by the grid operators as part of
the electricity bill.12
22. RES producers were entitled to choose between FITs13
and so-called green bonuses14
applicable at the time when their plants were first put into operation:
“The producer of the electricity from the renewable sources, to which the
support applies, has the right to chose, whether he offers his electricity for
buy-out according to the subsection 4 or whether he requires the green
bonus for it”.15
23. Each year the ERO was to determine the rate of FITs and green bonuses for plants
connected to the grid in the following year. Specific considerations were to be taken
into account by the ERO while setting these tariffs, as provided in Article 6 of Act 180,
for which the Parties provided different translations:
Claimants’ Translation of Article 6 of
Act 180 (Exh.C-031)
Respondent’s Translation of Article 6
of Act 180 (Exh.R-004)
Level of the prices for the electricity
from the renewable sources and the
green bonuses
(1) The Authority defines the buy-out
prices for the electricity from the
renewable sources (hereinafter
referred to as the “buy-out prices”)
separately for individual types of the
renewable sources and the green
bonuses always for the calendar year
in advance in such way that
Amounts of Prices for Electricity
from Renewable Sources and
Amounts of Green Bonuses
(1) The Office sets, one calendar
year in advance, the purchasing
prices for electricity from Renewable
Sources (the “Purchasing Prices”),
separately for individual kinds of
Renewable Sources, and sets green
bonuses, so that
a) the conditions are created for the
fulfilment of the indicative target of
the share of the generation of the
electricity from the renewable
sources in the gross consumption of
a) the conditions are created for the
achievement of the indicative target
so that the share of electricity
produced from Renewable Sources
accounts for 8% of gross electricity
12
Exh. R-031 ERO price decision No. 9/2008 of 18 November 2010; Exh. R-033 ERO price decision
No. 7/2009 of 25 November 2009; Exh. R-037, ERO price decision No. 14/2005 of 30 November
2005; Exh. R-038 ERO price decision No. 9/2006 of 27 November 2006; Exh. R-039, ERO price
decision No. 9/2007 of 26 November 2007.
13
FITs are granted to operators of renewable energy plants for the electricity they deliver to the grid
and take the form of a total price per unit of electricity paid.
14
The green bonus is an additional payment on top of the market price.
15
Exh. C-031, Act 180/2005, Section 4(3).
8
the electricity amounting to 8 % in
the year 2010 and
consumption in 2010 and
b) for the devices put into operation
1. after the date of the effect of this
Act, the fifteen-year period of time of
return of investment is reached with
support of the buy-out prices under
the condition of the fulfilment of the
technical and economic parameters,
that are especially the costs for the
installed unit of the output, the
efficiency of the use of the primary
content of the energy in the
renewable source and the period of
time of the use of the device and that
are defined in the implementing
regulation,
2. after the date of the effect of this
Act, the amount of the revenues
stays unchanged for the unit of the
electricity from the renewable
sources with the support of the buyout
prices for the period of time of 15
years since the year, when the
device was put into operation as
minimum amount whilst taking the
price index of the industrial
producers into consideration; also
the completion of the reconstruction
of the technological part of the
existing device, the change of the
fuel or the completion of the
modernisation, that increases the
technical and ecological level of the
existing device, are also regarded as
putting the device into operation,
3. prior to the date of the effect of this
Act, the minimum amount of the buyout
prices defined for the year 2005
according to the existing legislation
stays unchanged for the period of 15
years whilst taking the price index of
the industrial producers into
consideration.
b) for facilities commissioned
1. after the effective date of this Act,
there is attained, with the Support
consisting of the Purchasing Prices,
a fifteen year payback period on
capital expenditures, provided
technical and economic parameters
are met, such parameters consisting
of, in particular, cost per unit of
installed capacity, exploitation
efficiency of the primary energy
content in the Renewable Source,
and the period of use of the facility,
such parameters being stipulated in
an implementing legal regulation,
2. after the effective date of this Act,
the amount of revenues per unit of
electricity from Renewable Sources,
assuming Support in the form of
Purchasing Prices, is maintained as
the minimum [amount of revenues],
for a period of 15 years from the
commissioning year of the facility,
taking into account the industrial
producer price index; the
commissioning of a facility is also
deemed to include cases involving
the completion of a rebuild of the
technological part of existing
equipment, a change of fuel, or the
completion of modernization that
raises the technical and ecological
standard of an existing facility,
3. prior to the effective date of this
Act, there is maintained for a period
of 15 years the minimum amount of
Purchasing Prices set for the year
2005 in accordance with the legal
regulations to date and taking into
account the industrial producer price
index.
(2) When defining the amount of the
green bonuses, the Authority also
takes into consideration the
increased risk level of selling the
(2) When setting the amounts of
green bonuses, the Office also takes
into account a heightened degree of
risk associated with off-taking
9
electricity from the renewable
sources on the market with the
electricity.
electricity from Renewable Sources
in the electricity market.
(3) When defining the buy-out prices
and the green bonuses, the Authority
starts out from various costs for
acquisition, connection and operation
of individual types of devices
including the time development
thereof.
(3) When setting Purchasing Prices
and green bonuses, the Office
proceeds on the basis of differing
costs for the acquisition, connection
and operation of individual types of
facilities, including the development
thereof over time.
(4) The buy-out prices defined by the
Authority for the next calendar year
may not be lower that 95 % of the
value of the buy-out prices valid in
the year, in which the new decision is
to be taken. This provision is to be
used for the first time for the prices
defined for the year 2007.
(4) Purchasing Prices set by the
Office for the following calendar year
shall not be less than 95% of the
Purchasing Prices in effect in the
year for which the setting decision is
made. This provision shall be used
for the first time for the prices set for
2007.
24. Section 6(3) clarified that the ERO should set tariffs based on the differing installation
and operating costs of different sources of RES, “including the development [of those
costs] over time”, recognizing that changes in costs over time would lead to an
adjustment of the tariffs. Moreover, the FIT for electricity generated by a plant newly
put into operation could not be lower than 95% of the tariff applicable to the electricity
generated by the plants connected in the previous year (Section 6(4)) (so-called “5%
brake rule”). Finally, pursuant to Public Notice No. 150/2007, the FITs would be
increased annually to reflect the producers’ price index, by at least 2% but no more
than 4%.16
16
Exh. C-036, Public Notice 150/2007 Coll. of 19 June 2007 on price regulation in the energy sectors
and on price regulation methods, Section 2(11) provides: “[…] Throughout the lifetime of the facility
producing electricity, which falls in the relevant category determined pursuant to the type of renewable
source used and date of putting into operation, the feed-in tariffs shall be increased annually taking in
consideration the price index of industry manufacturers at least by 2% and at maximum by 4%”.
10
25. Further guidance for calculating the FIT was provided by means of Decree
No. 475/2005 Coll., on Implementation of Certain Provisions of the Act on Promotion of
Exploitation of Renewable Energy Sources (the “Technical Regulation”), which
established the specific technical parameters to be used by the ERO:
“In order for the 15-year pay-back period to be assured through the support
by Purchasing Prices of electricity produced from renewable sources,
technical and economic parameters of an installation producing electricity
from renewable sources must be satisfied, where the producer of electricity
from renewable sources shall achieve, with the given level of Purchasing
Prices
a) an adequate return on invested capital during the total life of the
installation, such return to be determined by the weighted average cost of
capital (WACC), and
b) the net present value of the cash flows after tax over the total life of the
installation, using a discount rate equal to WACC, at least equal to zero”.17
26. The formula to calculate the net present value required by Section 4(1)(b) of the
Technical Regulation and the weighted average cost of capital (“WACC”) was
published on the ERO’s website.18
Until the end of 2010, the WACC used by the ERO
in calculating the tariffs was 7% per year.19
27. Annex 3 to the Technical Regulation specified the individual technical parameters that
would be applied in calculating the FIT. These included (i) the assumed lifetime of the
installation; (ii) the assumed level of efficiency of the solar panels used; (iii) the
assumed investment costs per installed kilowatt peak (“kWp”); and (iv) the assumed
annual usage in kilowatt hours of installed kWp. The levels of these parameters were
set for a representative hypothetical installation and were modified as appropriate by
the ERO prior to calculating tariffs for the coming year.
17
Exh. R-013, Decree No. 475/2005 Coll., implementing certain provisions of the law on support for
the use of renewable sources (“Technical Regulation”), §4(1).
18
Exh. R-014, ERO Methodology for Determination of Purchasing Prices and Green Bonuses.
19
Id.
11
28. The period for which the producers would be eligible to receive the FIT calculated on
the basis of Act 180 and its supporting framework was set through Public Notices:
o Under Public Notice No. 150/2007, the FIT was to apply “throughout the lifetime
of the facility producing electricity”;20
o Through Public Notice No. 475/2005, the “lifetime of the facility producing
electricity” was set at 15 years;21
o Through Public Notice No. 364/2007, this period was increased to 20 years.22
The reasons for the increase were described as follows:
“[T]he lifespan of the facilities shall be modified; owing to the progress in
the industry, the lifespan has increased from 15 years to 20-25 years; it is
proposed to count on 20 years. However, this involves the issue of the
ageing of the panels because the panel output at the end of its lifespan is
not the same as its output once it is installed. This is why it is proposed to
count on the year-on-year decline in the panel output by 0.8% of the
nominal output per year”.23
C. THE CLAIMANTS’ INVESTMENTS
29. In 2009, Mr. t, the managing director of , a
company engaged in the search, management and operation of PV projects,
approached the Claimants with investment opportunities in the Czech solar sector.
With ’s co-operation, the Claimants invested in three solar PV plants in the
Czech Republic, Struhařov (1), Světlá (2), and Vernéřov (3).
1. Struhařov
30. On 14 August 2009, provided Claimants 1 and 2 with a proposal for a PV
project in the municipality of Struhařov.
20
Exh. C-036, Public Notice 150/2007 Coll. of 19 June 2007 on price regulation in the energy sectors
and on price regulation methods. While Public Notice 150 was replaced by Public notice 140 (Exhibit
C-37) in 2009, the cited provision remained unchanged.
21
Exh. C-038a, Public notice 475/2005 Coll. of 30 November 2005 implementing certain provisions of
the Act on Support for Renewable Sources Utilization.
22
Exh. C-038b, Public notice 475/2005 as amended through 364/2007.
23
Exh. R-157, Explanatory Report to draft ERO Regulation No. 346/2007 Coll., p. 4.
12
31. On 25 August 2009, Claimant 4 purchased plots of land in the Struhařov municipality
through , a project developer. One month later, on 25 September 2009, it
entered into a turnkey contract with for the construction of a solar PV plant.
The construction permit for the plant was subsequently issued on 27 November 2009.
Thereafter, on 14 December 2009, ERO issued a license for the generation of
electricity at the Struhařov plant. The plant was put into service on 16 December 2009
and connected to the grid on the same day pursuant to a contract with the grid
operator .
32. As mentioned above, the Claimants could choose to be paid for the electricity
generated through a FIT or through a green bonus. The Claimants chose the former.
At the time, the tariff was 12.79 CZK per kWh (EUR 0.492 per kWh) in accordance with
ERO’s Price Decision No. 8 of 18 November 2008 for plants commissioned in 2009.
2. Světlá
33. After the commissioning of the Struhařov plant, Claimants 1 and 2 considered further
investments in the Czech Republic. Eventually, they invested in two other PV plants
along with their , Claimant 3.
34. In February 2010, advised the Claimants that the city of Světlá was
seeking to sell property development rights by way of tender. The city intended to
participate in the profits of a PV plant without committing capital. On 12 February 2010,
responded to the tender. Its bid was successful and a development
contract was signed between and the city of Světlá on 26 March 2010. The
contract provided that, besides the purchase price, the city would receive a fee
of the tariffs paid by the grid operator for the electricity produced.
35. Two months later, on 7 April 2010, the Claimants set up JSW Solar (zwei) k.s., a
company directly owned by Claimant 4 (99.9%) and by JSW Solar (zwei) Verwaltungs
GmbH (0.01%), and indirectly owned by Claimants 1, 2 and 3 who are shareholders of
both companies. The development contract entered into by was assigned
to JSW Solar (zwei) k.s. by trilateral agreement.
36. The construction permit for the Světlá plant was granted on 18 May 2010, and a
turnkey contract was entered into with on 26 May 2010. The license for the
generation of electricity at the plant was issued by ERO on 22 September 2010. The
13
plant was put into service on 13 October 2010 and connected to the grid on the same
day.
37. As in the case of the Struhařov plant, the Claimants opted for compensation in the form
of FIT. At the time, the tariff was 12.15 CZK per kWh (EUR 0.48 per kWh) in
accordance with ERO’s Price Decision No. 5 of 23 November 2009 for plants
commissioned in 2010.
3. Vernéřov
38. While the investment in Světlá was ongoing, the Claimants received information from
about a project at Vernéřov. On 28 May 2010, JSW Solar (zwei) k.s.
signed a turnkey construction contract with for a PV plant at that location.
39. Somewhat later, on 7 July 2010, to develop the PV plant at Vernéřov, JSW Solar
(zwei) k.s. together with JSW Solar (zwei) Verwaltungs-GmbH acquired all shares in
FVE Verne s.r.o.24
FVE Verne s.r.o. was owned by JSW Solar (zwei) k.s. (99.9%) and
by JSW Solar (zwei) Verwaltungs GmbH (0.01%), which were in turn owned by
Claimants 1-3.
40. The construction permit for the Vernéřov plant was granted on 20 September 2010.
The license for the generation of electricity at Vernéřov was issued by ERO on
11 October 2010. The plant was put into service on 17 December 2010 and connected
to the grid on the same day.
41. Like for their other plants, the Claimants chose a FIT rather than a green bonus. At the
time, the tariff was 12.15 CZK kWh (approximately EUR 0.48 per kWh) in accordance
with ERO’s Price Decision No. 5 of 23 November 2009 for plants commissioned in
2010.
D. CHANGES IN THE PV SECTOR
42. The Respondent contends that a “fundamental change” in the global market for solar
panels occurred in 2009 and 2010. The price of solar panels – which form the bulk of a
24
The project rights were held by a special purpose vehicle FVE Verne s.r.o, which was owned by
another company Windenergie s.r.o.
14
producer’s investment costs – fell dramatically. As the FIT was set on the basis of a
higher investment costs, a “perfect storm” was in the making: while the investment
costs of RES plants decreased substantially, the Respondent could not reduce the
tariffs proportionately due to the 5% brake rule. The result, so says the Respondent,
was that producers stood to earn windfall profits at the expense of the Czech
consumers.
43. In these circumstances, the Respondent argues that it “had no choice” but to modify
the Support Scheme, which it did.
E. AMENDMENTS TO THE SUPPORT SCHEME
44. The Support Scheme was amended on several occasions in 2009 and 2010. The
principal amendments are outlined below.
1. Abolishing the 5% Brake Rule
45. On 21 April 2010, the Respondent enacted a first amendment of its Support Scheme
through Act 137/2010, which ended the 5% brake rule. As a result, ERO could reduce
the FIT by more than 5% for plants connected in the following year, i.e. 2011. This
amendment did not affect the Claimants,25
other than it allegedly “made it extremely
important that [the Claimants’ projects] would be concluded within 2010 in order to be
entitled to the 2010 feed-in tariff”.26
2. Limiting the Support Scheme to Small PV Plants
46. On 3 November 2010, in Act 330/2010, the Respondent limited, as from 1 March 2011,
the Support Scheme to small PV plants that had an installed capacity of up to 30 kWh.
This Act, in effect from 1 January 2011, applied to all plants connected from 2011
onwards. It did not affect the Claimants’ plants as these were all put into operation in
2009 (Struhařov) or 2010 (Světlá and Vernéřov).
25
The Claimants have submitted that the 5% limit is one of the “three independent guarantees” to
which they were entitled under Act 180 (Reply, §29). However, as the 5% brake rule did not apply to
tariffs for existing investments, it could not impact the Claimants’ investments. See also Tr. (Day 1)
31:13-15 (“[The] 5% brake clause. Not relevant for Claimants. They managed to bring their plants
online on time.”).
26
SoC, §88.
15
3. Abolishing the Tax Incentives
47. Still on 3 November 2010, through Act No. 346/2010 Coll., Amending the Income Tax
Act, as amended, and Other Related Acts (“Act 346/2010”), the Respondent amended
the Income Tax Act. More specifically, it terminated the Tax Incentives as of 1 January
2011. The reasons for the amendment were set out in the Explanatory Report
accompanying Act 346/2010:
“The proposed changes are in response to the need to eliminate all legal
means for the indirect support of electric power generation from renewable
resources (mainly solar power plants) that is no longer justified, and
therefore they are making taxation on environmentally friendly power
generation sources and facilities stricter and eliminating the tax-exempt
status of income from the operation of environmentally friendly power
generation facilities. In order to simplify legal regulation and enable easier
administration, the elimination of this exempt status for other
environmentally friendly facilities has also been proposed”.27
4. Introducing the Solar Levy
48. On 14 December 2010, the Respondent adopted Act 402/2010 Coll., (“Act
402/2010”),28
which limited the contribution of consumers to the RES subsidies (FIT or
green bonus) to CZK 370/MWh. This created a shortfall between the funds raised from
the final consumers and the amount of subsidy to be paid to RES producers. Act
402/2010 provided that this shortfall would be financed from the state budget. The
state budget, consequently, needed additional revenues to fund this expenditure.
27
Exh. R-221, Government’s proposal for adoption of a bill amending Act No. 586/1992 Coll., on
income tax, as amended, and other related acts.
28
Exh. R-123, Act 402/2010 Coll., amending Act No. 180/2005 Coll., on promotion of electricity
production from renewable energy sources (the Act on Promotion of Renewable Energy Sources), as
amended, and certain other acts.
16
49. These additional revenues were to come from multiple sources, one of which was a
26% so-called solar levy (the “Solar Levy”) which was introduced through Act
402/2010.29
The Solar Levy was to remain in force for a period of three years and
applied to PV plants put into operation between 1 January 2009 and 31 December
2010:
“Subject-Matter of Levy from Electricity from Solar Radiation
The subject-matter of the levy for the electricity from the solar radiation
(hereinafter referred to as the “levy”) is the electricity generated from the
solar radiation in the period of time from January 1, 2011 to December 31,
2013 in the device that was put into operation in the period of time from
January 1, 2009 through December 31, 2010”.30
50. The Solar Levy was imposed on PV producers, but was to be remitted by the grid
operators:
“Persons subject to the Levy
(1) The payer of the levy is the producer, if he generates the electricity from
the solar radiation.
(2) The payer remitting the levy is the operator of the transmission system
or the operator of the local distribution system”.31
51. The Solar Levy was withheld at source. The grid operator continued to pay the FIT to
the RES producers, but after deduction of the Solar Levy.
52. A formal order providing for the deduction of the Solar Levy was never issued to the
Claimants. They therefore complained about it to the grid operator .32
They also filed complaints with the relevant offices, but their complaints were
dismissed.33
They appealed these dismissals, but later withdrew their appeals on the
basis of the decision of the Czech Constitutional Court which is discussed below. The
Solar Levy continues to be deducted from the monthly payments by to
the Claimants’ plants in Světlá and Vernéřov.
29
In 2013, the Levy was reduced to 10%. See Exh. C-077, Act 310/2013.
30
Exh. C-065, Act 402/2010, Section 7(a).
31
Exh. C-065, Act 402/2010, Section 7(b).
32
Exh. C-018, Letter from Claimants to grid operator of 6 April 2011.
33
Exh. C-020, Complaint from Claimants to tax office of 29 June 2011; Exh. C-021, Decision by Děčín
Tax Office of 1 July 2011.
17
F. CONSOLIDATION OF THE SUPPORT SCHEME AND FURTHER LEGISLATION
53. On 30 May 2012, the Respondent published Act 165/2012 Coll., on Promotion of
Sources of Energy and Amending Certain Acts (“Act 165/2012”), which repealed and
replaced Act 180. Act 165/2012 came into effect partly from the date of publication and
partly as of 1 January 2013. It incorporated the FIT as set out in Act 180 and the Solar
Levy introduced in Act 402/2010.
54. Act 165 was itself amended with effect from 2 October 2013 by Act No. 310/2013 Coll.
(“Act 310/2013”). Act 310/2013 extended the Solar Levy at a rate of 10% of the FIT for
the plants commissioned in 2010 for the entire period of time during which these plants
would have right to electricity support.34
55. The provisions of Acts 346/2010 and 402/2010 applied to all of the Claimants’ plants.
The prolongation of the Solar Levy under Act 310/2013 applies to the Claimants’ plants
in Světlá and Vernéřov.
G. DECISIONS OF THE CZECH COURTS
1. Decision of the Czech Constitutional Court
56. On 10 March 2011, a group of 20 senators (members of the upper chamber of the
Czech Parliament) filed a petition with the Czech Constitutional Court asking the Court
to repeal, inter alia, the Solar Levy. The withdrawal of the tax exemption was
challenged as well. The petition was subsequently modified and supplemented on
several occasions.
57. The Constitutional Court defined the legal question before it as follows:
“[W]hether there existed on the part of the affected operators of [solar
plants] such a strong, constitutionally-relevant interest in the keeping of the
existing stipulated-in-law price for electricity from renewable sources, and
the stipulated amounts of green bonuses, without having such support
curtailed by the levy, that such interest would outweigh the public interest in
reducing the stipulated electricity prices”.35
34
Exh. C-077, Act 310/2013, Art. I(8)−(9) of (amending §§14 and 18 of Act 165/2012).
35 Exh. R-084, Decision of the Constitutional Court, case no. Pl. ÚS 17/11, 15 May 2012, §56.
18
58. On the Solar Levy, the Court observed that under Act 180 RES producers were at
most entitled to expect that their investment would be paid back in 15 years, which
time was maintained despite the Solar Levy:
“The Constitutional Court consequently concurred with the conclusion that
the consequence of the enactment of the parts of Act No. 402/2010 Coll.
that were challenged by the petitioners consists, in the case of investors
that commissioned their installations during the period from 1 January 2009
to 31 December 2010, merely of the fact that the extent of their profits was
temporarily affected by the amount of the newly-introduced levy and the
resulting extension of the payback period on their investment. However, the
system of support and the principles for setting regulated prices, as
regulated in Act No. 180/2005 Coll., continue to guarantee such conditions
as to enable investors to achieve a simple payback period on investment of
15 years. In relation to the payback period, the change is merely reflected
in the fact that the payback will be achieved in a longer time horizon (but
one that is maintained by the act) than the producers of electricity from
renewable sources had expected.”36
59. The Constitutional Court also observed that the introduction of the Solar Levy was
proportionate to the “entirely legitimate” objective of “averting the social and economic
impacts of a substantial rise in electricity prices for end consumers, and regulating
state support in response to an extreme fall in capital expenditure costs”:37
“The means that were selected for attaining such objectives seem to be
reasonable and appropriate, since as follows from the materials presented,
the levy on electricity from solar radiation was set so as to continue to
guarantee a fifteen year payback period on investment, the period
guaranteed by the law. [T]his was not an extreme measure, the production
of electricity from renewable sources continues to be subsidized to a
significant extent”.38
60. On the withdrawal of the tax exemption, the Court made the following observations:
“[T]he challenged provisions responded to the need to eliminate, through
the use of all legal means, the indirect support provided for the production
of electricity from ecological sources, support that was no longer justified at
that time, particularly as concerned solar installations, and such provisions
therefore made the tax regime applicable to ecological sources and
installations stricter by ending the tax exemption on income from the
operation of ecological installations.
The relevant legal regulation concurrently aimed to fulfill a major public
interest (that of keeping energy prices stable, keeping the public debt from
36
Id., §71.
37
Id., §72.
38
Id., §72.
19
rising etc.), an aim which, in the spirit of the case-law of the Constitutional
Court, can be used to justify even potential interference with the legitimate
expectations of taxpayers.
It is therefore evident that the reasons and objectives of the challenged
legal regulation, which was used to cancel the exemption from income tax
with regard to income from the operation of solar installations […] are
identical to the reasons and objectives that led to the enactment of the legal
regulation stipulating the levy on electricity from solar radiation, and
accordingly the Constitutional Court makes reference to paragraphs [above]
that fully fit this issue. For the sake of completeness, the Constitutional
Court would like to add that the income tax exemption was also cancelled
with regard to other ecological installations. Taxpayers could use this
exemption for the last time in the tax period that commenced in 2010, which
means that the change also applies to taxpayers that commissioned their
ecological energy sources and installations before these amendments
entered into force”.39
61. In conclusion, the Court emphasized:
“The principle of legal certainty cannot be viewed as being identical to a
requirement of absolute unchangeability of legal regulation, since legal
regulation is subject to, among other things, social and economic changes
and the requirement of ensuring that the state budget remains stable.
[…]
[T]he Constitutional Court has not ignored the fact that it had been the state
that guaranteed, by means of a law, a fifteen year payback period on
investment and a certain amount of revenues per unit of electricity
produced from renewable sources, thereby motivating the affected entities
to undertake entrepreneurial activities in the area of energy production from
renewable sources.
As was stated above, however, the Constitutional Court concurrently feels
that it is legitimate for lawmakers, after objectively ascertaining that a
change has occurred in the investments in PVPP, to take the step of
regulating support for the production of electricity from RES, to regulate it in
a manner so as to maintain the balance between inputs and revenues that
had been established by the original version of [the Act on Promotion], a
balance that was expressed by the fifteen year payback period […] and a
firmly-established amount of revenues”.40
62. These principles were subsequently upheld by a later decision of the Court.41
39
Id., §§83-84.
40
Id., §§85-86.
41
Exh. R-234, Decision of the Czech Constitutional Court, case no. 2216/14, 13 January 2015.
20
2. Decisions of the Supreme Administrative Court
63. Although the Constitutional Court held that the contested measures were not
unconstitutional, it recognized that they could harm individual investors in a
disproportionate manner. It therefore opened the way for investors who could
demonstrate that the measures had a “strangling effect” on their business to seek
judicial redress or apply to the relevant tax authority for tax deferrals.
64. Consequently, a large number of solar generators brought proceedings against the
local tax administrations, arguing that the Solar Levy had a “strangling effect” in their
particular cases.
65. Most of these cases were dismissed on the basis that solar investors had no legitimate
expectations beyond the 15-year payback guarantee. In its decisions, the Supreme
Administrative Court confirmed that the guarantee under the Act 180 did not include a
guarantee of sufficient cash flow or of a certain level of profitability:
“The fact that the investment made is not capable in certain years of its
existence of generating a sufficient cash flow to cover the repayment of
interest and the principal amount of the loan that is provided for a period
shorter than the expected payback period does not mean that such
investment cannot be expected to be paid back − there is only a problem
with cash flow, resulting from various requirements pertaining to its amount
in the course of the lifespan of the investment, not from the fact that the
investment as a whole would not be paid back. Therefore, not only the
issue of simple payback of the investment (in the sense of statutory
guarantees), but also another issue of adequate profit from carrying out
business on a regulated market must be perceived in relation to the overall
period of the expected 20-year lifespan of photovoltaic panels. The
Constitutional Court has addressed the issue of profitability in a
comprehensive manner (i.e. also with respect to the method of determining
the purchase prices) and has not found any defects in the amended version
of [the Act on Promotion] that would automatically collide with any
constitutionally guaranteed rights of photovoltaic plant operators”.42
66. The Supreme Administrative Court further clarified that a “strangling effect” was one
that would cause the liquidation or affect the substance of the producer:
“In certain specific, individually assessed cases, the application of [the
Solar Levy] could indeed, in the opinion of the Constitutional Court, be
contrary to the Constitution; however, these would only be cases where the
42 Exh. R-124, Decision of the Supreme Administrative Court, case no. 2 Afs 13/2013-28, 15 August
2013, p. 8.
21
charges would have liquidation effects and or would affect the very
substance of the electricity producer in terms of its assets”.43
67. A Grand Chamber of the Supreme Administrative Court later held that the Ministry of
Finance should grant tax relief to solar generators which demonstrated that, in their
individual circumstances, the effect of the Solar Levy was “suffocating” in the sense of
the 2012 Constitutional Court judgment. It also set the parameters for obtaining relief.44
III. PROCEDURAL HISTORY
A. WRITTEN PHASE
68. On 24 June 2013, Claimants 1 and 2 served the Czech Republic with a Request for
Arbitration under Article 10 of the Treaty between the Federal Republic of Germany
and the Czech and Slovak Federal Republic on encouragement and reciprocal
protection of investments of 2 October 1990 (“the Treaty” or “the BIT”)45
accompanied
by exhibits.
69. On 23 August 2013 Mr. Gary Born was appointed as co-arbitrator by the Claimants. On
26 August 2013 Judge Peter Tomka was appointed as co-arbitrator by the
Respondent. With the consent of the co-arbitrators and the Parties, Prof. Gabrielle
Kaufmann-Kohler was appointed as President of the Tribunal.
70. On 3 March 2014, the Parties and Tribunal signed the Terms of Appointment (“Terms
of Appointment”). In the Terms of Appointment, the Parties agreed to the choice of
Geneva as the seat of the arbitration and to the rules that would govern the arbitration.
Further, they consented to the appointment of Ms. Eva Kalnina, an attorney in the firm
of the President as Secretary to the Tribunal. Mr. Rahul Donde, also an attorney in the
firm of the President, later replaced Ms. Kalnina with the consent of the Parties. The
Parties also approved the tasks which the Secretary would perform in the course of the
arbitration as described in the Tribunal’s letter of 19 August 2014.
43
Id., p.10.
44
Exh. R-225, Decision of the Grand Chamber of the Czech Supreme Administrative Court, case no.
1 Afs 76/2013-57, 17 December 2013.
45
By exchange of notes of 18 December 1992 and 1 January 1993 respectively, the Federal Republic
of Germany and the Czech Republic agreed that the Treaty would remain applicable between the two
States after the dissolution of Czechoslovakia.
22
71. On 12 March 2014, the Tribunal issued Procedural Order No. 1 (“PO 1”) in which it set
the procedural calendar and other procedural rules for the arbitration. The proceedings
were bifurcated, it being provided that the Respondent’s jurisdictional objections would
be heard first. The bifurcation was later undone with the consent of the Parties as it
arises from the following account.
72. On 18 July 2014, the Claimants filed their Statement of Claim (“SoC”) accompanied by
factual and legal exhibits, witness statements of Messrs ,
, and an expert report of Mr. of
Alvarez and Marsal on quantum.
73. On 21 July 2014, the Tribunal received a letter dated 11 July 2014 from the European
Commission (“EC”) containing an application by the Commission to intervene as a nondisputing
party in the arbitration.
74. On 23 July 2014, the Tribunal forwarded the application to the Parties, inviting them to
comment. It also advised the Commission that it would hear the disputing parties on
the application and revert to the Commission with its decision. An amended application
filed by the Commission was subsequently conveyed to the Parties (the “Commission’s
Application”).
75. On 15 August 2014, the Parties submitted their comments on the Commission’s
Application.
76. On 25 August 2014, the Respondent advised the Tribunal that since it intended to raise
only a single jurisdictional objection regarding the lack of standing of Claimant 4, it did
not wish to proceed with the bifurcation of the present arbitration. Further, it had
initiated discussions with the Claimants on a new calendar for the arbitration where
jurisdiction, merits and quantum issues would be heard together.
77. On 27 August 2014, the Tribunal invited the Parties to propose a new calendar for the
arbitration, and suspended the preparation of its decision on the Commission’s
Application. It also separately informed the Commission that, due to likely changes in
the calendar of the arbitration, its decision may be delayed.
78. On 8 September 2014, the Tribunal noted that the Parties had been unable to agree on
a procedural calendar, principally because the Claimants maintained that the
23
proceedings should remain bifurcated – a position which the Respondent opposed. On
the basis of the Parties’ submissions, the Tribunal decided to de-bifurcate the
arbitration. The Claimants later objected to this decision.
79. On 26 September 2014, the Tribunal directed the Respondent to submit its Objections
to Jurisdiction as contemplated by PO 1, and to make any additional comments on
bifurcation/de-bifurcation by 27 October 2014. The Claimants were then to state
whether they maintained their objections to the de-bifurcation of the arbitration and to
the Commission’s Application.
80. On 27 October 2014, the Respondent filed its Objections to Jurisdiction (“Objections to
Jurisdiction”) accompanied by legal authorities.
81. On 31 October 2014, the Claimants agreed to the de-bifurcation of the arbitration.
However, they maintained their opposition to the Commission’s Application.
82. Following the Claimants’ approval of de-bifurcation, on 6 November 2014, the Tribunal
advised the Parties that, since both Parties now consented, jurisdiction, admissibility
and merits (liability and quantum) would be heard together. Accordingly, it invited the
Parties to submit (preferably joint) proposals for the calendar of the arbitration,
specifying that they were not to take into account the (possible) effect of the
Commission’s Application. If the Tribunal allowed the Commission’s Application, it
would insert the Commission’s submission and the Parties’ related comments into the
calendar in parallel to other steps such that the calendar would not be affected.
83. On 13 November 2014, the Respondent contended that the Claimants had provided
limited information on their purported investments “indicat[ing] licensing irregularities
that may warrant an objection to the Tribunal’s jurisdiction on the grounds of illegality of
Claimants’ investment”. Accordingly, it requested that document production should
precede the filing of its Statement of Defense (“SoD”) because otherwise it would be
precluded from raising its illegality objection. It also submitted a proposal for the
procedural calendar and commented on the Claimants’ objections of 31 October 2014
to the Commission’s Application.
84. On the same day, the Claimants insisted that document production should occur in the
usual course after the first round of submissions. They also submitted their own
proposal for the procedural calendar in the arbitration.
24
85. To facilitate the decision on the timing of the document production, on 24 November
2014, the Tribunal invited the Respondent “to identify the documents that it seeks from
the Claimants and the reasons why it does so”. At the same time, the Tribunal noted
that the Respondent had agreed to the Claimants’ proposal that the Tribunal rule on
the Commission’s Application only after the first round of submissions, i.e. after the
SoD. As a result, the Tribunal advised the Parties that it would address the
Commission’s Application, its power to accept an amicus intervention, and, if
applicable, the merits of such intervention and practicalities, after the submission of the
SoD.
86. On 4 December 2014, the Respondent produced a table listing its document requests
and explaining their relevance and materiality.
87. On 11 December 2014, the Claimants responded to the Respondent’s submission.
88. On 16 December 2014, the Tribunal granted the Respondent’s request for a document
production phase, and set a schedule for document production. This schedule was
revised on 6 January 2015.
89. On 16 February 2015, the Tribunal issued Procedural Order No. 2 (“PO 2”), in which it
decided the Respondent’s document production requests. It appended a revised
procedural calendar.
90. On 20 March 2015, the Respondent filed its SoD accompanied by factual exhibits,
legal authorities, an expert report of Ms. Kelyn Bacon, QC and an expert report by
Mr. Michael Peer. The Respondent advised the Tribunal that it was seeking a decision
from the Commission on whether the State aid granted for installations put into
operation before 1 January 2013 was compatible with the EU internal market. It
requested the Tribunal to stay the present proceedings until the Commission’s
decision.
91. In their reply of 13 April 2015, the Claimants opposed the Respondent’s request for a
stay. They argued that the Commission’s decision would not affect the outcome of the
case and, therefore, could not justify a stay of the proceedings. According to them, the
decision was a matter outside these proceedings that would “very likely arise only after
25
the award was rendered”.46
Further, the decision would likely be issued only in mid to
late 2016, not counting time for challenges.
92. On 24 April 2015, the Tribunal rejected the Respondent’s request. It noted that the
request was belated and that, in any event, the Respondent had not shown how itself
or the arbitration proceedings would be prejudiced if the stay was not granted. It further
noted that “[i]f the Commission’s decision is rendered while the arbitration is ongoing,
then the Tribunal will, of course, entertain the submissions the Parties choose to make
on the effect of the decision on the arbitration. If the time comes for the Tribunal to
render the award and the decision has still not been issued, the Tribunal will see at that
time whether that requires it to delay the award”.
93. On the same day, the Tribunal advised the Parties that it was about to rule on the
Commission’s Application and that, before doing so, it would consider any additional
comments the Parties wished to make.
94. The Claimants submitted their comments on 29 April 2015, maintaining their objections
of 15 August and 31 October 2014. The Respondent submitted its comments on 4 May
2015, also reiterating its earlier position.
95. On 27 May 2015, the Tribunal issued Procedural Order No. 3 (“PO 3”) in which it
decided on the Parties’ document production requests submitted to the Tribunal on
10 April 2015.
96. On 16 September 2015, the Claimants filed their Reply (the “Reply”) accompanied by
factual exhibits, legal authorities, the second witness statement of Mr. , as
well as the second expert report of Mr .
97. On 22 September 2015, the Tribunal issued Procedural Order No. 4 (“PO 4”), in which
by majority it granted the Commission’s Application, and set out a timetable for the
Commission’s non-disputing party submission and the Parties’ responses thereto. Mr.
Born issued a dissenting opinion on 8 October 2015.
46
Claimants’ communication of 13 April 2015.
26
98. On 12 November 2015, upon a request by the Commission and after consulting the
Parties, the Tribunal confirmed that the Commission’s understanding of the nature of
the dispute as stated in the Commission’s communication of 30 October 2015 was
correct. It also advised the Commission that Acts No. 165/2012, No. 310/2013 and No.
346/2010 Coll. (in respect of the latter, specifically Article I(36) and Article I(75) and
transitional provisions being Articles II(2), II(9), and II(10) thereof) could be relevant to
the dispute.
99. On 11 December 2015, the Commission filed its non-disputing party submission (the
“Amicus Curiae Submission”) accompanied by annexes.
100. On 17 December 2015, the Respondent filed its Rejoinder (the “Rejoinder” or “Rej.”)
accompanied by factual exhibits, legal authorities, a witness statement by Mr.
and the expert reports of Mr. Wynne Jones of Frontier Economics and Ms. Kelyn
Bacon, QC, and the second expert report of Michael Peer of KPMG.
101. On 14 January 2016, the Claimants requested the Tribunal to disregard the witness
statement of Mr. and the expert report of Mr. Wynne Jones (the “New
Evidence”) on the basis that they contained evidence that should have been submitted
earlier. In its response of 20 January 2016, the Respondent opposed the exclusion of
the New Evidence. In its ruling of 25 January 2016, the Tribunal (i) admitted the New
Evidence into the record, (ii) gave the Claimants an opportunity to file rebuttal evidence
and brief explanatory comments limited to the New Evidence, and (iii) gave the
Respondent an opportunity to file sur-rebuttal evidence and brief explanatory
comments limited to the Claimants’ just preceding submission.
102. On 15 February 2016, the Claimants and the Respondent filed their replies to the
Amicus Curiae Submission (the “Claimants’/Respondent’s Comments on the Amicus
Curiae Submission”).
103. On 11 March 2016, the Claimants filed their “Reply to the New Evidence Submitted in
Respondent’s Rejoinder” (the “Claimants’ Comments on the New Evidence”),
accompanied by factual exhibits and an expert report of Mr. of
Onyx Energy Consulting.
29
112. On 31 May 2016, the Parties submitted their joint revisions to the hearing transcripts.
113. On 15 June 2016, the Parties submitted their cost submissions.
114. On 20 June 2016, in response to an allegation made by the Claimants in their cost
submission concerning double recovery, the Respondent confirmed that “the costs for
which the Czech Republic seeks recovery in this case are ones that are solely
allocated to this proceeding, and shall not be included in cost submissions in any other
matter. In consequence, there is no risk of “double recovery”.
115. On 21 October 2016, the Tribunal advised the Parties and the Commission that it had
deliberated and determined that it had all necessary information to proceed to draft its
award. Subject to any comments to be made by 4 November 2016, the Tribunal would
thus close the proceedings.
116. On 29 October 2016, the Commission advised the Tribunal that the German
Bundesgerichtshof had requested the European Court of Justice (“ECJ”) to issue a
preliminary ruling on whether a provision similar to Article 10 of the Treaty appearing in
an intra-EU BIT was compatible with EU law. It suggested that the Tribunal stay the
arbitration pending a decision by the ECJ. It also advised the Tribunal that the
Commission had adopted the second step of the infringement procedure against five
EU Member States for not having formally terminated their intra-EU BITs.
117. On 4 November 2016, the Claimants and the Respondent confirmed that they did not
have any comments to make before the Tribunal closed the proceedings.
118. On 7 November 2016, the Tribunal conveyed the Commission’s submission of 29
October 2016 to the Parties, giving them the opportunity to comment on the
submission by 14 November 2016.
119. On 7 November 2016, the Claimants requested the Tribunal to instruct the
Commission to submit an English language translation of Annex 1 of the Commission’s
submission.
120. On 11 November 2016, the Tribunal advised the Parties that they could submit their
comments referring to their own translation of Annex 1 if at all necessary.
30
121. On 14 November 2016, the Claimants responded to the Commission’s submission,
opposing the Commission’s suggestion of staying the proceeding. They pointed out
that the Bundesgerichtshof had approached the ECJ on 3 March 2016, two months
before the oral hearing in the present arbitration. The Commission had thus
approached the Tribunal belatedly, in an attempt to delay the award. Further, they
submitted that the Commission’s submission should be rejected as it was inadmissible
and had no legal basis.
122. In its response of the same day, the Respondent too opposed the Commission’s
suggestion of staying the proceeding. It submitted that, while the Czech Republic
shared many of the Commission’s concerns about the possible incompatibility of intraEU
investor-state dispute settlement with EU law, the pendency of the preliminary
ruling proceeding did not justify staying the present arbitration as neither disputing
Party had asked the Tribunal to declare that the Treaty was incompatible with EU law.
It also pointed out that a decision by the ECJ would take a long time, and that the court
could limit the effect of the ruling to the period after the ruling, in which case it would
not affect the present dispute.
123. On 2 December 2016, the Claimants requested the Tribunal to reopen the
proceedings. They noted that on 28 November 2016, the Commission had decided that
the Support Scheme did not constitute unlawful State aid (the “Commission Decision”).
The Claimants also requested leave to introduce into the record the press release of
the Commission and, once available, the Commission Decision.
124. On 6 December 2016, the Tribunal invited the Respondent to comment on the
Claimants’ request by 13 December 2016.
125. In its response of 13 December 2016, the Respondent did not object to the Claimants’
request to reopen the proceedings, or their request to file the Commission Decision
and accompanying press release into the record. Instead, it offered to submit an unredacted
version of the Commission Decision into the record, on the condition that it be
treated as confidential. It also submitted that the Parties should only be given a limited
opportunity to comment on the Commission Decision.
126. On 15 December 2016, the Tribunal advised the Parties that it would accept
submissions on the Commission Decision and that, subject to these submissions, the
proceedings were closed. The Respondent was invited to introduce the un-redacted
31
version of the Commission Decision and accompanying press release into the record
on the understanding that the un-redacted version of the Commission Decision would
be treated as confidential. Moreover, the Parties were invited to make simultaneous
submissions on the Commission Decision by 6 January 2017. There would be a
second round of simultaneous submissions if a Party so requested or if the Tribunal so
directed.
127. The next day, the Claimants agreed to the procedure proposed by the Tribunal and
requested that the Respondent produce the Commission Decision by 19 December
2016, or else they would need more time to prepare their submission.
128. On 19 December 2016, the Respondent confirmed that it would submit the
Commission Decision on 19th
or 20th
December 2016, and subsequently did so on 20
December.
129. On 21 December 2016, the Tribunal advised the Parties that as the Commission
Decision was filed a day later than requested by the Claimants, and having due regard
to the intervening holidays, the time limit for submission of the Parties’ comments on
the Commission Decision was extended to 10 January 2017 and the subsequent time
limit for advising the Tribunal if either Party wished a second round was deferred to
17 January 2017.
130. On 10 January 2017, the Parties submitted their comments on the Commission
Decision (the “Claimants’/Respondent’s Comments on the Commission Decision”).
131. On 17 January 2017, the Parties advised the Tribunal that they did not seek a second
round of submissions. The next day, the Tribunal confirmed that it too did not require
further submissions.
132. On 21 February 2017, the Commission wrote to the Tribunal attaching its submission
on its Decision (the “Commission’s Submission”).
133. On 1 March 2017, the Tribunal conveyed the Commission’s Submission to the Parties.
It advised them that while the Tribunal did not expect any further submissions from the
Parties, if either Party considered that the Commission’s Submission called for further
comments, it could file such comments by 10 March 2017.
32
134. On 10 March 2017, the Claimants commented on the Commission’s Submission,
stating that it did not agree with the Commission’s views. On its part, the Respondent
advised the Tribunal that it did not intend to provide comments.
135. On 23 March 2017, the Claimants asked the Secretary for a status update on the
issuance of the award. The Secretary replied on 27 March 2017 stating that the
Tribunal would advise the Parties of the status of the award shortly.
136. On 27 March 2017, the Tribunal advised the Parties that it anticipated being in a
position to issue its decision in principle in late June or early July.
137. On 7 July 2017, the Tribunal advised the Parties that it was well advanced in its
deliberations and that it anticipated issuing its award no later than September. It stated
that the Parties would be given three days advance notice before sending out the
award.
138. On 25 August 2017, the Tribunal advised the Parties that the award was ready to be
issued. However, one member of the Tribunal was preparing an opinion that would not
be ready before late September. The Parties could therefore choose to jointly receive
the award first and the opinion later, or to receive the award and the opinion together at
a later time.
139. On 28 August 2017, the Claimants advised the Tribunal that they would prefer
receiving the award and opinion together. The Respondent wrote on 1 September
2017 that “the Czech Republic would prefer that the Award be issued as soon as
possible, and […] any separate opinion be distributed at a later time.”
140. On 11 September 2017,the Tribunal advised the Parties that it would follow the usual
practice in international arbitration and issue award and opinion together.
141. On 6 October 2017, the Parties were notified that the award would be issued on 11
October 2017.
33
IV. POSITIONS OF THE PARTIES AND RELIEF REQUESTED
A. SUMMARY OF THE CLAIMANTS’ POSITION
142. The Claimants have summarized their case as follows:
“Claimants invested in 2009 and 2010 in three PV-plants in the Czech
Republic. Their investment decision was based on explicit guarantees
contained in the Support Scheme, among others, that the feed-in tariff
given at the time of commissioning the plants would be guaranteed for
twenty years. The Support Scheme also preserved long-term income tax
exemptions and shortened depreciation periods. The Czech Republic
endorsed these benefits at home and abroad in order to attract foreign
investors.
Based on these guarantees, Claimants, having procured due diligence
reports to assess the factual and legal risks involved, proceeded with their
investment. At the time of their investments, the introduction of the solar
levy was in no way foreseeable. Claimants relied on the explicit guarantees
that the Czech Republic itself deemed to be in full compliance with EU law.
Respondent has tried to argue that the guarantee for a return on investment
within fifteen years [was the] “operative basis” of the Support Scheme.
Claimants have shown that this term coined by Respondent for the purpose
of these proceedings finds no basis whatsoever in the wording of the
Support Scheme, the legislative history, the representations of the Czech
Republic or the decisions of domestic courts. Respondent also failed to
show that Claimants or any other investors received “windfall profits” as a
result of an alleged drop in prices for solar panels between 2009 and 2010.
Furthermore, Respondent has not submitted any evidence suggesting that
the solar levy was introduced to curb “windfall profits”. Instead, the
legislative documents show that the solar levy was simply introduced to
reduce the effect of the solar subsidies on the national budget and on the
consumer prices.
Finally, Respondent has failed to explain what any other due diligence,
besides the extensive due diligence reports obtained from three law firms
by Claimants, should have brought to light and why this should have
discouraged Claimants to invest in the Czech Republic. All of Claimants
three PV-plants are currently operating and there are no pending disputes
with Czech authorities regarding the permits or licenses of those plants.
This is not a dispute about naive or negligent investors rushing-in to benefit
from “windfall profits”. It is a dispute about experienced businessmen
investing in the Czech Republic on the basis of highly specific legislative
guarantees which they were invited to rely on by the Czech Republic. In
essence, the question that has to be decided is whether states should be
allowed to open the honeypot to attract foreign investors and then, once
those investors commit serious capital to the host country, to retract and
34
circumvent long-term guarantees and simply fail to hold-up their end of the
bargain”.47
143. In so far as they are relevant to resolve the issues in dispute, the Claimants’ detailed
arguments will be summarized in the introduction to the Tribunal’s analysis of each
disputed issue. For the avoidance of doubt, the Tribunal emphasizes that, while it has
only referred to the aspects of the Claimants’ case which are most pertinent to its
decision, it has considered all of the Claimants’ submissions and evidence.
B. THE CLAIMANTS’ REQUEST FOR RELIEF
144. In their SoC, the Claimants sought the following relief:
“I. DECLARE that the Czech Republic has breached its obligations towards
Claimants under the BIT;
II. ORDER the Czech Republic to pay damages to the Claimants, currently
calculated to [EUR 19,012,000]48
and pre- and post award interest on the
damages in an amount of 2,23 % from 01.01.2014 until date of payment,
compounded annually;
III. ORDER the Czech Republic to compensate Claimants for their costs of
arbitration in an amount to be specified later together with interest thereon
and, as between the parties, alone to bear all costs for the arbitration
including compensation and fees to the Arbitral Tribunal and the
administrative costs of the PCA”.49
145. This request for relief was substantially similar to the one contained in the RfA.50
146. At the end of the hearing, however, the Claimants revised their request for relief as
follows:
“Claimants therefore ask the Tribunal to
I. Declare that the Czech Republic has breached its obligations towards
Claimants under the BIT;
II. Order the Czech Republic to pay, together with an appropriate pre-and
post award interest rate since 1.1.2015,
47
Reply, §§125-129.
48
Reply, §21.
49
SoC, §18. See also Reply, §21 and RfA, §64.
50
RfA, §64.
35
1. For damages [sic] relating to the plant Struhařov to claimants
Jürgen Wirtgen and Stefan Wirtgen each TEUR 1,105.3 including
tax consequences,
2. For damages to the plant Světlá
a. to Claimant JSW Solar (zwei) GmbH & Co. KG
TEUR 7,171.50 including tax consequences; (OR)
b. if the Tribunal finds it has no jurisdiction over
Claimant JSW Solar (zwei) GmbH & Co. KG, to
Claimants Jürgen Wirtgen, Stefan Wirtgen and
Gisela Wirtgen TEUR 2,390.50 each including tax
consequences,
3. For damages to the plant Vernéřov
a. to Claimant JSW Solar (zwei) GmbH & Co. KG
TEUR 9,629.50 including tax consequences, (OR)
b. if the Tribunal finds it has no jurisdiction over
Claimant JSW Solar (zwei) GmbH & Co. KG, to
claimants Jürgen Wirtgen, Stefan Wirtgen and
Gisela Wirtgen TEUR 3,209.80 each including tax
consequences
III. In the alternative,
1. order the Czech Republic to pay, together with an appropriate
pre-and post award interest rate since 1.1.2015,
a) For damages [sic] relating to the plant Struhařov
to claimants Jürgen Wirtgen and Stefan Wirtgen
each TEUR 580.50,
b) For damages to the plant Světlá
(1) to Claimant JSW Solar (zwei) GmbH & Co. KG
TEUR 3,766.90; (OR)
(2) if the Tribunal finds it has no jurisdiction over
Claimant JSW Solar (zwei) GmbH & Co. KG, to
claimants Jürgen Wirtgen, Stefan Wirtgen and
Gisela Wirtgen TEUR 1,255.60 each,
c) For damages to the plant Vernéřov
(1) to Claimant JSW Solar (zwei) GmbH & Co. KG
TEUR 5,057.90, (OR)
(2) if the Tribunal finds it has no jurisdiction over
Claimant JSW Solar (zwei) GmbH & Co. KG, to
claimants Jürgen Wirtgen, Stefan Wirtgen and
Gisela Wirtgen TEUR 1,686 each.
36
d) Declare that the Czech Republic shall
compensate the Claimants for any and all tax that
may be levied by the tax authorities on them as a
consequence of any damages being awarded to
them in accordance with III 1. (a) - (c) above,
and
IV. Order the Czech Republic to compensate Claimants as joint creditors for
their costs of arbitration in amount to be specified later together with interest
thereon and, as between the parties, alone to bear all costs for the
arbitration including compensation and fees to the Arbitral Tribunal and the
administrative costs of the PCA”.51
147. The Respondent opposed the revision of the Claimants’ requests for relief as untimely.
C. SUMMARY OF THE RESPONDENT’S POSITION
148. The Respondent has summarized its case as follows:
“Like thousands of other investors, Claimants raced to take advantage of
the massive decline in solar panel costs […], before the price drop could be
reflected in the regulated subsidy price. In doing so, Claimants hoped to
earn substantially more than the rate of return targeted by the regulation.
However […] Claimants never received any assurances of stabilization of
the regime, or assurances that the State would refrain from measures that
could reduce their excess profits. Unlike a traditional business, Claimants’
investments were (and remain) almost wholly shielded from market risk for
a period of 20 years. This does not mean, however, that they were also
shielded from the risk of legislative change. To the contrary, in a subsidybased
regulated environment and in the absence of market forces, it is the
State and its energy regulator that must protect the public interest by
ensuring that industry subsidies do not result in windfall profits at the
expense of electricity consumers and taxpayers.
[…]
Claimants’ [arguments] are largely divorced from reality. Some of these
arguments rely on the denial of basic facts, including the dramatic decline in
solar panel prices by mid-2009 and the resulting imbalance between the
fixed subsidies and the profit levels targeted by the regulation. Other
arguments attempt to shift focus away from the key benchmarks of
investment return (within 15 years) and reasonable profit (over the 20-year
lifetime of the solar plants), by emphasizing other provisions, such as those
providing for fixed tariff rates, which in fact were not modified at all by the
Tax Measures. By the same token, Claimants’ repeated references to
“contracts and licenses” embodying their supposed guarantees lose sight of
the fact that none of these documents contained any guarantees
51
Exh. C-115, Claimants’ Closing Presentation, 12 May 2016.
37
whatsoever with respect to taxation, profitability, or even the RES Scheme
more broadly.
Claimants’ Reply also fails to acknowledge the clear relevance of EU law to
the core issues in this case. [T]he EU Treaties remain part of the applicable
law in this arbitration, regardless of the fact that the seat of this arbitration is
outside the EU […] EU law is important both to the merits of the dispute and
to the issue of enforceability of the award
[…]
Claimants fail to establish that the Tribunal has jurisdiction to entertain
claims for alleged injury to Claimant JSW Solar KG, because that entity
does not qualify as an “investor” within the meaning of the BIT. The fact that
JSW Solar KG does not qualify as an investor under the BIT means that all
claims for alleged injury to that entity must be excluded from this arbitration.
In any event, all of the Claimants have utterly failed to substantiate their
merits claims. As discussed below, Claimants assert claims under three
different provisions of the BIT — the umbrella clause, the fair and equitable
treatment clause, and the full protection and security clause — which
ultimately boil down to two unfounded theories of liability: first, that the
Government supposedly altered domestic law in circumstances when it was
internationally-bound not to do so; and, second, that the measures are
flawed because they allegedly were intended to deliberately harm
Claimants. Each of these theories founders on both law and fact”.52
149. In so far as they are relevant to resolve the issues in dispute, the Czech Republic’s
detailed arguments will be summarized below just before the Tribunal’s analysis of
each disputed issue. For the sake of clarity, the Tribunal emphasizes that, while it has
only referred to the elements of the Respondent’s case which are most important for its
decision, it has considered all of the Respondent’s submissions and evidence.
D. THE RESPONDENT’S REQUEST FOR RELIEF
150. In the SoD, the Respondent sought the following relief:
“For the foregoing reasons, and reserving the right to further develop and
expand its submission and request for relief, the Czech Republic
respectfully requests the Tribunal to:
a) order a stay of the present proceedings until the European Commission
issues a decision in the proceedings regarding state aid represented by the
RES Scheme as applicable to installations commissioned before 1 January
2013 (the other requested relief thus being in the alternative);
52
Rej., §§5 et. seq.
38
b) declare that the Tribunal does not have jurisdiction ratione personae over
Claimant JSW Solar (zwei) GmbH & Co. KG;
c) declare that the Czech Republic has not breached the Treaty;
d) dismiss all of the Claimants’ claims in their entirety;
e) order the Claimants to pay the costs of these arbitral proceedings,
including the cost of the Tribunal and the legal and other costs incurred by
the Czech Republic, on a full indemnity basis; and
f) order the Claimants to pay interest on any costs awarded to the Czech
Republic, in an amount to be determined by the Tribunal”.53
151. In its Rejoinder, the Respondent sought the following relief:
“For the reasons set forth above, the Czech Republic respectfully reiterates
its request that the Tribunal (a) reject Claimants’ claims in their entirety
because (with regard to JSW Solar KG) they are outside the Tribunal’s
jurisdiction and, in any case, are entirely lacking in merit; and (b) issue an
award of costs and fees (including all legal fees and expenses), and
interest thereon, in favor of the Czech Republic”.54
152. These requests were not changed at the hearing.
V. ANALYSIS
A. PRELIMINARY MATTERS
153. Prior to entering the merits of the dispute, the Tribunal will address the applicable
procedural law (1), the law governing jurisdiction (2) and the merits of the dispute (3)
as well the maxim jura novit curia (4) and the relevance of previous decisions or
awards (5).
1. Applicable Procedural Law
154. This ad hoc investment arbitration is governed by (i) the procedural rules contained in
the BIT and, as it is seated in Geneva and involves non-Swiss parties, by (ii) Chapter
12 of the Swiss Federal Act on Private International Law Act (PILA).55
As for the
Treaty, Article 10(2) contains some basic provisions on the constitution of an arbitral
53
SoD, §317.
54
Rej., §487.
55
Art. 176(1) PILA.
39
tribunal for settlement of an investment dispute. It further provides that “[i]nsofar as the
parties do not agree otherwise, the provisions of Article 9, paragraphs 3 to 556
shall be
appropriately applied” in an investment arbitral proceeding. In accordance with
Article 9(5), the arbitral tribunal shall reach its decisions by a majority of votes and the
decisions of the Tribunal shall be binding. This Article also gives some guidance on
costs and provides that the arbitral tribunal shall determine its own procedure in
respect of other matters.57
155. In implementation of Article 9(5) of the Treaty and taking account of the seat of the
arbitration, Section 8 of the Terms of Appointment provides as follows:
“APPLICABLE PROCEDURAL RULES
This arbitration shall be governed by (in the following order of precedence):
a) The mandatory rules of the law on international arbitration applicable at
the seat of the arbitration;
b) These Terms of Appointment and the procedural rules issued by the
Arbitral Tribunal, as will be reflected in Procedural Order No. 1 and any
amendments thereof.
44. If the provisions therein do not address a specific procedural issue, the
applicable procedural issue shall be determined by agreement between the
Parties or, in the absence of such agreement, by the Arbitral Tribunal”.
2. Law Governing Jurisdiction
156. It is generally accepted that an investment tribunal’s jurisdiction is governed by
international law, first and foremost by the BIT. In addition, the Tribunal may look to
other rules of international law which may apply as between the Contracting Parties.
National law may be relevant to jurisdictional requirements depending on the issue in
56
Article 9 applies to the settlement of disputes between the Contracting States of the Treaty.
57
Article 9(5) of the Treaty: “Each Contracting Party shall bear the cost of its own member of the
tribunal and of its representation in arbitration proceedings; the cost of the chairman and the
remaining costs shall be borne in equal parts by the Contracting Parties. The arbitral tribunal may
decide on a different allocation of costs. The arbitral tribunal shall determine its own procedure as
regards other matters.”
40
question, particularly if the Treaty contains a reference to national law58
or uses a term
that can only be understood by reference to national law.59
3. Law Governing the Merits
157. While they agree on the application of the BIT to the merits of the dispute, the Parties
and the EC diverge on the applicability of EU law. In light of this divergence, it falls on
the Tribunal to determine whether EU law may find application. It will do so (d) after
having summarized the Parties’ ((a) and (b)) and the Commission’s positions (c).60
a. The Claimants’ position
158. The Claimants assert that the Parties agreed that the law relevant to the present
dispute is the Treaty and public international law. Had the Parties intended for any law
to apply additionally, they would have said so. The Claimants further submit that
although the Treaty does not define the applicable law, its existence is governed by
public international law. Thus, where the Treaty provides no guidance, deficiencies in
the Treaty can be remedied by turning to principles of public international law.
159. As to the application of EU law, it is the Claimants’ position that EU law is irrelevant to
the resolution of the dispute. The application of EU law would “exceeds the
commitments as agreed by the parties to the BIT, as well as the parties to this
dispute”,61
which is underscored by the agreement of the Parties to arbitrate outside of
the EU.
160. The Claimants are further of the view that, while EU law may be applied as
international or supranational law within the EU, this does not mean that EU law is
international law within the international legal order. The Tribunal cannot place EU law
at the same level as the rules set in the Treaty. In the event that the Tribunal considers
58
See for e.g. Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
of Bolivia, ICSID Case No. ARB/06/2, Decision on Jurisdiction, 27 September 2012 (“Quiborax”), §47.
59
This determination is in line with Article 178 PILA. As to its form, there is no question that the
arbitration agreement is in writing under Article 178(1). As to the law governing substantive validity,
the determination accords with the first two options of Article 178(2) PILA, being specified that the
Contracting States consent to jurisdiction and applicable law when concluding the treaty and the
investor when starting an arbitration under it.
60
The Commission’s argument that the applicability of EU law deprives this Tribunal of jurisdiction is
considered below.
61
Claimants’ Comments on the Amicus Curiae Submission, §12.
41
it necessary to take EU law into account, the Claimants argue that it should apply as
national law. Other international tribunals have treated national law as fact and there is
no reason to deviate from that approach here.
161. Moreover, the Claimants submit that the closest connection test provided in Article 187
of the PILA is irrelevant for present purposes. Domestic conflict law rules, they
contend, play no role in an investor-State arbitration under a BIT. They further
underline that the Treaty provides for both state-to-state arbitration in Article 9 and for
investor-State arbitration in Article 10, and that the latter refers to the former in respect
of procedural matters. They contend that “[i]t is evidently absurd to assume that
proceedings under Article 9 should be subject to national law. It is equally absurd to
assume that proceedings under Article 10, which refer to the same subject matter,
should be subject to national law”.62
162. In any event, they submit that the closest connection test is only relevant where the
parties have not chosen the applicable law. Here, as the Parties have chosen the
Treaty and public international law, the closest connection test does not come into
play.
b. The Respondent’s position
163. The Respondent submits that for issues that are not expressly regulated in the Treaty,
the Tribunal must look to the Treaty’s governing law. Since the Treaty offers no
guidance, the Tribunal must determine “the rules of law with which the case has the
closest connection” in accordance with Article 187 of the PILA.
164. In the Respondent’s submission, the “rules of law” with the closest connection in this
case are the rules and principles of international law. This is because the Treaty is an
international instrument and because the Claimants allege that the Czech Republic has
breached international law. Further, as the Claimants invested in the Czech Republic
and because they are German nationals, Czech law and, to some extent, German law
are also relevant. Swiss law too is relevant as it provides the procedural rules that the
Tribunal must follow in the absence of an agreement between the Parties. In sum, the
62
Claimants’ Comments on the Amicus Curiae Submission, §24.
42
Tribunal must first have regard to the rules and principles of international law,
supplemented if necessary by the rules of Czech and German law as applicable.
165. Furthermore, the Respondent argues that because of the Czech Republic’s accession
to the EU, “[t]he EU Treaties, and the general principles, rules and regulations
comprised therein […] constitute applicable rules and principles of international law in
force between the Contracting Parties to the BIT”.63
Consequently, EU law too forms
part of the “rules of law” applicable in this dispute.
166. For the Respondent, EU law itself is highly relevant in multiple ways. First, EU law
forms part of the international law applicable to this dispute and is a source of
international obligations. Second, to the extent the Tribunal finds that the municipal law
of the Czech Republic or Germany are applicable to any issue in dispute, EU law is
relevant as it forms an integral part of these legal systems. Third, EU law must also be
taken into account when interpreting the obligations contained in the Treaty pursuant to
Article 31(3)(c) of the Vienna Convention on the Law of Treaties (“VCLT”). Fourth, as
part of the legal order binding on the Czech Republic, EU law is relevant as a fact
when assessing the rationality of the Czech Republic’s conduct, as well as the
legitimacy of the Claimants’ expectations. Fifth, EU law is relevant to the enforceability
of the award.
167. Finally, the Respondent submits that, as a matter of international law, the Treaty must
be interpreted harmoniously with EU law to the extent possible. If harmonious
interpretation is not possible, the Treaty must be “disapplied”. This is so because of the
fundamental principle of “primacy” of the EU legal order over all conflicting norms
including treaties concluded between EU Member States. If this were not so, EU
Treaties would be unable to function as its Member States could enter into new
international agreements amongst themselves that would derogate from EU law. The
Treaty does not allow its Contracting Parties to escape obligations imposed by EU law.
c. The Commission’s position
168. The Commission observes that, like other German BITs, the Treaty contains no choice
of law. Thus, the governing law must be determined in conformity with the rules under
63
Rej., §306.
43
which the arbitration is conducted. Arbitral tribunals have generally considered that
BITs are governed by international law. Further, EU law is also applied as part of
international law binding on Germany and the Czech Republic. The outcome would be
the same under the “closest connection” test: EU law would apply because the Czech
Republic transposed EU directives into the Czech legal order as part of its obligations
under EU law.
169. Finally, the Commission shares the view of the Respondent that Member States
cannot invoke international agreements which they have concluded between
themselves to justify a failure to comply with EU law.
d. Analysis
170. Section 7 of the Terms of Appointment records that the Parties consent to the
application of the BIT.64
Indeed, this arbitration has been initiated under Article 10 of
the Treaty. The Claimants’ seek damages for the Czech Republic’s alleged breaches
of the Treaty. In the circumstances, the Treaty is the primary source of applicable law.
171. Beyond the application of the BIT, Section 7 of the Terms of Appointment notes that
the Tribunal will determine the governing law:
“APPLICABLE SUBSTANTIVE LAW
The applicable law, in addition to the application of the BIT which is
uncontroversial, will be subject to briefing by the Parties and determined by
the Tribunal”.
172. From the Parties’ submissions, the Tribunal understands that there is no dispute – and
rightly so – on the applicability of international law in addition to the Treaty.65
173. By contrast, there is no common ground on the status and applicability of EU law. The
Claimants argue that EU law cannot be categorized as international law. Only if
relevant or necessary, may EU law be applied as domestic law. The Respondent takes
a contrary position, arguing that EU law forms part of the applicable international law.
64
See also Claimants’ Reply to Commission’s Amicus Curiae Submission, §10 (“[T]he dispute should
be governed by the provisions of the BIT.”) and Rej., §299 (“[I]n resolving this dispute, the Tribunal
must, first and foremost look to the provisions of the BIT itself.”).
65
See Claimants’ Comments on the Amicus Curiae Submission, §11; SoC §168; Rej. §§299 et. seq.
44
174. The Tribunal will thus focus its choice of law analysis on determining the role of EU law
if any. Doing so, it bears in mind Article 187 of the PILA, which provides that, failing a
choice of law, the tribunal must apply the rules of law with the closest connection with
the dispute in accordance with the so-called principle of proximity. Here, the BIT
contains no choice of law and the disputing Parties have not agreed on the application
of EU law. Hence, the Tribunal will assess the applicable law under the principle of
proximity, being specified that it enjoys substantial discretion in doing so.66
175. The status and applicability of EU law in investment treaty arbitration were exhaustively
discussed in Electrabel v. Hungary.67
Essentially, Electrabel considered that EU law
was “a sui generis legal order, presenting different facets depending on the perspective
from where it is analysed”. Accordingly, it found that EU law was on the one hand an
“international legal regime” and, on the other, “once introduced in the national legal
orders of EU Member States”,68
it became “part of these national legal orders”.69
This
being so, EU law should not be confined to the national legal order: “[i]n the
international setting in which this Tribunal is situated and from which it necessarily
derives its perspective”,70
so continued the ICSID tribunal, “EU law has to be classified
first as international law”,71
“because it is rooted in international treaties”.72
It added
that “EU law as a whole is part of the international legal order”73
and that “EU legal
rules are part of a regional system of international law and therefore have an
international legal character”.74
In other words, the fact that EU law is also applied
within the national legal order of an EU Member State does not deprive it of its
international legal nature, whereby it is irrelevant from the perspective of international
law “whether such application within a national legal order take effect directly or
indirectly”.75
As a result, the Electrabel tribunal concluded that there was no
“fundamental difference in nature between international law and EU law that could
66
Gabrielle Kaufmann-Kohler/Antonio Rigozzi, International Arbitration – Law and Practice in
Switzerland, OUP 2015, §7.47.
67
Electrabel S.A. v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law
and Liability, 30 November 2012 (“Electrabel”), §§4.117ff.
68
Id., §4.118.
69
Id.
70
Id., §4.119.
71
Id.
72
Id., §4.120.
73
Id., §4.122.
74
Id.
75
Id., §4.125.
45
justify treating EU law, unlike other international rules, differently in an international
arbitration requiring the application of relevant rules and principles of international
law”.76
Finally, Electrabel noted that, “when it is not applied as international rules […],
EU law must in any event be considered as part of the Respondent’s national legal
order, i.e. to be treated as a “fact” before this international tribunal”.77
176. Tribunals in Achmea v. Slovak Republic78
and Euram v. Slovak Republic79
have
reached similar conclusions.
177. The Tribunal finds the reasoning and conclusions of the Electrabel tribunal persuasive,
and sees no reason to depart from them in the present proceedings. It concludes that
international law, which applies in addition to the Treaty, encompasses EU law.
Further, on some occasions, the Tribunal may take EU law – which otherwise forms
part of a national legal system of an EU Member State – into account as a relevant
fact.80
178. The Tribunal considers that these conclusions are sufficient for the present purposes
and that it can dispense with addressing the arguments concerning the so-called
“primacy” of EU law over the Treaty. Indeed, for the reasons mentioned below [§§250
et. seq.], the Tribunal has found no relevant conflict between EU law and the Treaty.
Therefore, the question of primacy, if any, simply does not arise.
4. Jura Novit Curia
179. When applying the governing law as it was just identified, the Tribunal is not bound by
the arguments or sources invoked by the Parties. Under the maxim jura novit curia –
or, better, jura novit arbiter – the Tribunal is required to apply the law of its own motion,
provided always that it seeks the Parties’ views if it intends to base its decision on a
76
Id., §4.126.
77
Id., §4.127.
78
Achmea B.V. (formerly Eureko B.V.) v. Slovak Republic, UNCITRAL, PCA Case No. 2008-13,
Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010 (“Achmea”).
79
European American Investment Bank v. Slovakia, UNCITRAL, Award on Jurisdiction, 22 October
2012 (“Euram”).
80
The Parties’ agree. See Respondent’s Comments on the Amicus Curiae submission, §4 (“this
Tribunal [should] take account of EU law as both a relevant fact and applicable law to the merits of the
dispute.”); Claimants’ Comments on the Commission Decision, §1 (“Claimants maintain their position
that EU law, including EU state aid law, must be treated as domestic law and thus as part of the
factual matrix.”).
46
legal theory that was not addressed and that the Parties could not reasonably
anticipate. This is a principle followed by international courts and tribunals81
and is also
the rule under Swiss international arbitration law.82
5. Relevance of Previous Decisions
180. In support of their positions, both sides have relied on previous decisions or awards,
either to conclude that the same solutions should be adopted in the present case or in
an effort to explain why this Tribunal should depart from a solution reached by another
tribunal.
181. The Tribunal is not bound by the decisions of other arbitral tribunals. At the same time,
however, the Tribunal considers that it should pay due respect to such decisions.
Unless there are reasons to the contrary, the Tribunal will adopt the approach
established in a series of consistent cases, subject, of course, to the specifics of the
Treaty and to the circumstances of the actual case. By doing so, the Tribunal is of the
view that it will act in conformity with its duty to contribute to the harmonious
development of investment law and meet the legitimate expectations of the community
of States and investors towards legal certainty and the rule of law.
B. JURISDICTION
182. It is not disputed that the Treaty is in force. Through the Exchange of Notes on
18 December 1992 and 1 January 1993, the Governments of the Czech Republic and
of the Federal Republic of Germany have agreed that the treaties concluded between
the latter and the Czech and Slovak Federal Republic would remain in force with
81
E.g. among others Quiborax, §47.
82
Daimler Financial Services A.G. v. Argentine Republic, ICSID Case No. ARB/05/1, Decision on
Annulment, 7 January 2015, §295 (“[…] an arbitral tribunal is not limited to referring to or relying upon
only the authorities cited by the parties. It can, sua sponte, rely on other publicly available authorities,
even if they have not been cited by the parties, provided that the issue has been raised before the
tribunal and the parties were provided an opportunity to address it”). See also Fisheries Jurisdiction
Case (Federal Republic of Germany v. Iceland), Merits, Judgment, 25 July 1974, §18 (“[i]t being the
duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case,
the burden of establishing or proving rules of international law cannot be imposed upon any of the
Parties, for the law lies within the judicial knowledge of the Court.”); Albert Jan Oostergetel and
Theodora Laurentius v. The Slovak Republic, UNCITRAL Case (“Oostergetel”), Award, 23 April 2012,
§141; Metal-Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award, 4 October 2013
(“Metal-Tech”), §287.
47
respect to the Czech Republic as long as both parties would not agree otherwise. No
such contrary agreement has been concluded.
183. The Claimants initiated the present arbitration under Article 10 of the Treaty which
provides in relevant part as follows:
“(1) Disputes concerning investments between a Contracting State and an
investor from the respective other Contracting State should as far as possible
be settled amicably between the parties to the dispute.
(2) If the dispute cannot be settled within six months of the date on which it
was raised by one of the parties to the dispute, it shall, at the request of the
investor from the other Contracting State, be submitted to arbitration.
[…]”
184. It is undisputed83
that the following requirements set in Article 10 have been complied
with:
 The Parties “numerous” attempts to settle the dispute amicably have failed.84
Hence, the requirement of Article 10(1) of the Treaty is met.
 Each of the Claimants has accepted the Respondent’s offer to arbitrate
contained in Article 10(2) of the Treaty:
o Claimants 1, 2 and 4, i.e. Jürgen Wirtgen, Stefan Wirtgen and
JSW Solar (zwei) GmbH & Co. KG, have accepted the offer by
filing the Request for Arbitration on 24 June 2013;
83
In its initial submissions, the Respondent mentioned that it would challenge the jurisdiction of the
Tribunal on three separate grounds: (i) that the Claimants had violated the six-month waiting period
under Article 10(2) of the Treaty with respect to the application of the 10% Solar Levy to the
Claimants’ solar plants commissioned in 2010 through Act 310/2013; (ii) that the Claimants had
violated the six-month waiting period also with respect to the claims of Ms. Gisela Wirtgen, Claimant
3, and (iii) that JSW lacked standing in this arbitration. However, it later explained that the first two
objections relating to the Claimants’ violation of the six month waiting period had become moot
through the passage of time (see, for instance, Respondent’s letter of 25 August 2014). Hence, the
Respondent decided to proceed only with the third jurisdictional objection concerning Claimant 4,
which is considered below. Further, in its Objections to Jurisdiction, the Respondent noted that the
“little information” provided by the Claimants in respect of their investments led the Respondent to
believe that there may be “licensing irregularities”. Accordingly, the Respondent reserved the right to
raise a jurisdictional objection on the grounds of illegality of the Claimants’ investment. However, no
such objection was made.
84
SoC, §§160-164.
48
o Claimant 3, i.e. Ms. Gisela Wirtgen, has accepted the offer to
arbitrate by her letter of 6 January 2014.
 The present dispute concerns “investments”. Article 1(1) of the Treaty contains
a broad definition of “investment”, which includes “ownership of movable and
immovable property” and “shares of companies and other kinds of interest in
companies”. Moreover, there is common ground that the Claimants made an
allocation of resources for a long duration at their risk when they invested
through JSW Solar v.o.s., JSW Solar (zwei) k.s. and FVE Verne s.r.o. in the
construction and operation of three PV plants in the Czech Republic.
 The Respondent does not dispute that Claimants 1, 2 and 3 qualify as
“investors” as defined in Article 1(3) of the BIT.
185. By contrast, the Respondent contends that Claimant 4, i.e. JSW, is not an investor
within the meaning of Article 1(3) of the BIT (1). Further, in its Amicus Curiae
Submission, the Commission argues that EU law deprives this Tribunal of jurisdiction
(2). Both these arguments are considered below.
1. Is Claimant 4 an Investor?
a. The Respondent’s position
186. The Respondent submits that the Claimants bear the burden of establishing the
Tribunal’s jurisdiction under the Treaty and that they have failed to meet this burden
with respect to JSW.
187. According to the Respondent, the wording of Article 1(3) of the Treaty is clear. The
Claimants must meet three cumulative requirements for JSW to be considered as an
“investor” within the meaning of Article 1(3): (i) JSW is a “juridical person”, (ii) JSW has
its seat in “the territory covered by” the Treaty, and (iii) JSW is “authorized to act as an
investor”. For the Czech Republic, JSW fails to meet the first requirement. It is not a
“juridical person”, because it is a “limited partnership” (Kommanditgesellschaft or
“KG”), which lacks legal personality under German law.85
85
Objections to Jurisdiction, §42.
49
188. The Respondent objects to the Claimants’ translation of Article 1(3) of the Treaty and
submits that the term “juristische person” in the German version and “právnická osoba”
in the Czech version “unequivocally translate as juridical person”,86
and not as “legal
entity”. Thus, despite the Claimants’ submissions to the contrary, the Treaty only
covers investors who are “juridical persons”, a requirement that JSW does not satisfy.
189. The Respondent denies the Claimants’ submissions that the term “juridical person”
must be interpreted autonomously. For the Respondent, the Claimants have advanced
no “principled reason” why the Tribunal should ignore German law for purposes of
determining whether JSW can be deemed a German “investor” under the Treaty.
Indeed, a treaty is not a self-contained legal system and reference may be made to a
“wider juridical context”.87
The absence of express renvoi to domestic law is not
determinative, as tribunals have frequently relied on definitions of domestic law to give
content to treaty terms, even absent an express reference.
190. The Respondent also refutes the Claimants’ submission that an entity only needs legal
capacity, but not legal personality to fall within the ambit of Article 1(3) of the Treaty.
This view is not in line with the text of the Treaty. Neither is it supported by German
treaty practice or international law. It is irrelevant in the Respondent’s submission that
resort to domestic law may yield different results for Czech and German entities.
Indeed, a BIT is not meant to standardize nationality requirements or corporate
formalities of the two Contracting Parties.
191. The Respondent opposes the Claimants’ argument that this approach would not
respect the object and purpose of the Treaty. According to it, “if a person or entity does
not qualify as an “investor of the other Contracting Party”, by definition the exclusion of
that person or entity from the BIT’s protection cannot contradict the object and purpose
of the BIT. In fact, the precise opposite is true: it would contradict such object and
purpose to include such a person within the BIT’s scope of coverage”.88
192. The Respondent also refutes the Claimants’ argument that the exclusion of KGs from
treaty protection would entail that a majority of German entities would be deprived of
investment protection. It submits that, when entering into the Treaty, Germany may
86
Objections to Jurisdiction, §34.
87
Rej., §380.
88
Rej., §383.
50
precisely have had such intent. Germany may have wished to discourage foreign
investments via KGs and to encourage outbound investment through other types of
legal entities which could be taxed both at the company and at the shareholder levels.
193. Moreover, the Respondent observes that other German BITs contain broader notions
of the term “investor”, expressly including entities other than juridical persons.
Therefore, if the Tribunal were to accept the Claimants’ arguments, “the express
extension to German law partnerships in other investment treaties concluded by
Germany would be rendered meaningless”.89
194. Should the Tribunal deny jurisdiction over Claimant 4, the Respondent argues that all
claims for alleged injury suffered by that entity must be discarded from the scope of
this arbitration. Claimants 1-3 cannot be substituted for Claimant 4 as the Claimants
suggest. According to the Respondent, this is so for several reasons, including “(1)
JSW Solar KG cannot assert such claims itself, (2) the remaining Claimants have not
asserted claims for injury to JSW Solar KG, and (3) the remaining Claimants could not
assert claims for injury to JSW Solar KG without effectively undoing any decision to
decline jurisdiction over JSW Solar KG”.90
Further, the Claimants have not asserted or
established any damages for their indirectly held investments.
b. The Claimants’ position
195. The Claimants challenge the Respondent’s position. According to them, Article 1(3) of
the Treaty “leads to the conclusion that an ‘[i]nvestor’ only needs legal capacity, but not
legal personality: it needs to be able to invest, i.e. to buy and sell, conclude contracts,
sue and be sued”.91
As it is undisputed that a KG has these attributes, JSW is an
“investor” within the scope of Article 1(3).
196. More specifically, the Claimants submit that the term “juridical person” has to be
interpreted autonomously; a position which they say is supported by decisions of other
investment tribunals. They also note that KGs acted as claimants in three ICSID
proceedings in the past without their standing being questioned. In addition, two
proceedings brought by KGs are currently pending. According to the Claimants, “if KGs
89
Objections to Jurisdiction, §53.
90
Rej., §8.
91
Reply, §139.
51
can pass the hurdle under ICSID, then […] they should also be considered juridical
persons under the BIT”.92
197. For the Claimants, the very premise of the Respondent’s argument is incorrect. The
Respondent assumes that the Contracting Parties intended to refer to different
definitions of “juridical person” under their national laws. That is not the case. First, a
review of German BITs shows that, when Germany wished to refer to national law, it
did so explicitly. Second, the Respondent’s interpretation would lead to “nonsensical”
results. A KG would be an investor in Germany, but not in the Czech Republic, which
would be contrary to the reciprocal protection expressly stated in the preamble of the
BIT. Finally, the Claimants stress that “it […] is possible that a company from another
EU member state which transferred its seat to Germany is an investor within the terms
of the Treaty. Applying German law standards to these companies clearly is
impossible”.93
198. The Claimants insist that about one third of all German companies are KGs; they are
the “heart” of the German economy. The Respondent “[hasn’t] put forward a single
quotation, a single document from the [Treaty] negotiations which could explain why
Germany suddenly should have wanted to waive protection for one third of its
companies”.94
199. The Claimants also dispute that German treaty practice supports the Respondent’s
case. While some German BITs explicitly refer to “companies or associations with or
without legal personality”, these treaties define the term “investor” differently for each
contracting state. This is not true of the German-Czech BIT, which contains one
definition for both Contracting Parties. Of the seven German BITs (including the
Treaty) that contain a single definition, in four treaties the definition explicitly includes
legal entities without legal personality. However, all four were concluded after the
German-Czech BIT. The two other BITs, concluded in 1989, do not address the
question of legal personality.95
Thus, in all but three BITs, Germany protects
companies with or without legal personality. For the Claimants, there is no reason why
92
Tr. (Day 4) 602:12-15.
93
Reply, §136.
94
Tr. 45:24-46:1.
95
Reply, §146 relying on Exh. C-094 (Definition of “investor” under German BITs).
52
Germany should have excluded companies without legal personality from the scope of
investor protections in the German-Czech BIT.
200. Finally, the Claimants submit that, the exclusion of Claimant 4 would in any event have
no “major relevance” for the resolution of their dispute. Claimants 1-3, all of whom are
natural persons, invested their own money into the solar plants through Claimant 4. In
the circumstances, as the Treaty does not exclude investments held indirectly, the
claims of Claimant 4 could be brought by Claimants 1-3.96
c. Analysis
201. Article 10 of the BIT refers to disputes between a Contracting State and an “investor”.
The term “investor” is defined in Article 1(3), being specified that the German and
Czech texts are equally authentic.97
In the German text, Article 1(3) of the Treaty reads
as follows:
“[Für die Zwecke dieses Vertrag] bezeichnet der Begriff “Investor” eine
natürliche Person mit ständigem Wohnsitz oder eine juristische Person
mit Sitz im jeweiligen Geltungsbereich dieses Vertrags, die berechtigt ist,
Kapitalanlagen zu tätigen”.98
202. In the Czech text, Article 1(3) of the Treaty reads as follows:
“[Pro účely této Dohody] Pojem “investor” znamená fyzické osoby se
stálým bydlištěm nebo právnické osoby se sídlem v okruhu působnosti
této Dohody, jež jsou oprávněny jednat jako investoři”.99
203. Several English translations are in the record:
 In the Request for Arbitration, the Claimants translated Article 1(3) as:
“[For the purposes of this Agreement] an “Investor” is either a natural
person who has its permanent residence in a contracting state or a
juridical person with its seat in one of the Contracting States”.100
96
Tr. (Day 4) 604-605.
97
RLA-001 ("Done at Prague on 2 October 1990, in duplicate in the German and Czech languages,
both texts being equally authentic.").
98
Exh. RLA-002.
99
Id.
100
RfA, §15.
53
 In the SoC, the Claimant then translated Article 1(3) somewhat differently:
“investor” means a “natural person with permanent residence or a legal
entity with registered office in the respective area of jurisdiction of this
Treaty who or which is entitled to make investments.101
 In the SoD, the Respondent provided its translation:
““investor” shall mean a natural person with permanent residence or a
juridical person with its seat in the territory covered by the application of
this Treaty and authorized to act as an investor”.102
 In the Reply, the Claimant appeared to agree103
with the Respondent’s
translation just quoted:
“the term “investor” means a natural person with permanent residence or
a legal entity [read “juridical person”] with registered office in the
respective area of jurisdiction of this Treaty who or which is entitled to
make investments (emphasis supplied)”.104
204. As a consequence, the Tribunal understands that the Parties are in principle in
agreement that the term “investor” in the Treaty is defined as:
“a natural person with permanent residence or a juridical person with its
seat in the territory covered by the application of this Treaty and
authorized/entitled to act as an investor”.
205. From its own reading of the original versions of the Treaty, the Tribunal considers this
translation accurate being specified that the word “berechtigt” in German or
“oprávněny” in Czech is more precisely reflected by “entitled” to invest or “act as
investor” than by “authorized”, which may convey the idea that a specific approval or
permission is required, a requirement not implied in the original version. It follows that
“investors” under the Treaty are (1) “natural persons” with permanent residence or (2)
“juridical persons” that have a seat in the territory of one of the Contracting Parties and
are entitled to act as an investor.
101
SoC, §152; Exh. C-078.
102
Exh. RLA-001, Article 1(3).
103
Reply, §140 and fn.75 (“Claimants reject the contention that they might have tampered with the
wording of the translation. They did not do the translation themselves. […] Claimants will adopt — for
the sake of argument — Respondent’s terminology.”).
104
Reply, §140.
54
206. JSW is not a “natural person”. Thus, in order for it to fall within the scope of the Treaty,
it must be (i) a “juridical person” (ii) that has its seat in “the territory covered by” the
Treaty. Further, it must be entitled to act as an investor (iii). The latter two
requirements – that JSW has its seat in Germany and that it be entitled to act as an
investor – are not contested.105
207. By contrast, the Parties disagree whether JSW is a “juridical person”. The Respondent
submits that the term “juridical person” must be understood by reference to German
law. As German law does not confer legal personality to KGs such as JSW, JSW is not
a “juridical person” for purposes of Article 1(3) of the Treaty. The Claimants object,
stating that the term “juridical person” must be interpreted autonomously. As JSW can
invest, conclude contracts, acquire property and sue and be sued in its own name, it
must be deemed a “juridical person” within the meaning of the Treaty.
208. To resolve this dispute, the Tribunal must interpret Article 1(3) of the Treaty in which
the term “juridical person” appears. For doing so, the Tribunal turns to the rules of
interpretation of treaties contained in Articles 31106
and 32107
of the VCLT, which
applies because both Czechoslovakia108
and Germany became parties to it in 1987,
some three years prior to the conclusion of the Treaty in 1990. Accordingly, it will
interpret Article 1(3) of the Treaty giving the term “juridical person” its ordinary
meaning, in its context, and in light of the object and purpose of the Treaty.
105
See, for instance, SoD, §§146-71, alleging that JSW cannot be considered an “investor” because,
under German law, a KG does not have legal personality and is not considered a “juridical person.”
See also Rej., §167 stating that JSW is a limited partnership registered in Germany “as a vehicle for
the Wirtgen Claimants’ investment in the Czech Republic”.
106
According to Article 31 of the VCLT, a treaty “shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object
and purpose”. The starting point of the interpretation is the “ordinary meaning” of the text. The latter
must be ascertained in the light of the context and the treaty’s object and purpose, any subsequent
agreement or practice of the Contracting Parties related to the interpretation of the treaty, and any
other relevant rules of international law applicable in the relations between the Contracting Parties.
107
Pursuant to Article 32 of the VCLT, one may resort to supplementary means of interpretation (i) to
confirm the meaning resulting from the application of Article 31 or (ii) to determine the meaning when
the interpretation according to Article 31 “leaves the meaning ambiguous or obscure” or “leads to a
result which is manifestly absurd or unreasonable”.
108
The Czech Republic notified its succession to the VCLT on 22 February 1993 with effect as of
1 January 1993.
55
(i) Ordinary meaning and context
209. The threshold question here is whether the term “juridical person” is to be interpreted
by reference to German law as the Respondent suggests, or interpreted
autonomously, as the Claimants propose. For the following reasons, the Tribunal is of
the view that the term “juridical person” is an autonomous or treaty-specific concept.
210. First, the Tribunal notes that the definition in Article 1(3) of the Treaty recognizes two
kinds of investors. “Natural persons” who must have a “permanent residence” and
“juridical persons” with a seat in a territory covered by the Treaty and entitled to invest.
No recourse to national law is provided in respect of either type of investors.
211. By contrast, other provisions of the Treaty do refer to national law. Thus, Article 1(1) of
the Treaty which defines the term “investments”, expressly refers to the “internal
legislation” of the Contracting States:109
“the term “investments” covers assets of any kind which are invested by
investors from one Contracting State in the territory of the other
Contracting State in accordance with the internal legislation of the
respective other State.”
212. Similarly, Article 2(1) of the Treaty which considers investment promotion and fair and
equitable treatment, too contains an express reference to the Contracting States’
domestic legislation:110
“Each Contracting State shall in its territory promote as far as possible
investments by investors from the other Contracting State and admit
such investments in accordance with its legislation. Each Contracting
State shall in every case accord investments fair and equitable
treatment.”
213. Other provisions of the Treaty also contain references to the Contracting States’
domestic legislation. This is so in Article 7(1) (“If the legislation of either Contracting
State or international obligations existing at present or established hereafter between
the Contracting States in addition to this Treaty contain any provisions, whether
general or specific, entitling investments by investors from the other Contracting State
to a treatment more favourable than is provided for by this Treaty, such provisions shall
109
Exh. C-078.
110
Id.
56
prevail over this Treaty to the extent that they are more favourable”); Article 8 (“This
Treaty shall also apply to investments made since 1 January 1950 but prior to the
Treaty’s entry into force by investors from either Contracting State in the territory of the
respective other Contracting State consistent with the latter’s legislation”); and
paragraph 3(c) of the Protocol to the Treaty (“Within the framework of their internal
legislation […]”).
214. It is evident that when the Contracting Parties wished their municipal laws to govern,
they included an express reference to this effect. In the absence of such reference, it is
reasonable to conclude that the Contracting Parties intended to give a term a treatyspecific
meaning “for the purposes of this Agreement”, as the chapeau of Article 1
expressly states. It is not unusual for contracting states to give a term used in a treaty
an autonomous meaning which may differ from its significance under national law. It is
a technique used to achieve the uniform applications of a treaty. So for instance, terms
used in the New York Convention in principle have an autonomous meaning.111
This
conclusion is strengthened when one examines the object and purpose of the Treaty,
as well as the relevant treaty practice which the Tribunal does below.
215. The Tribunal is sensitive to the Respondent’s submission that tribunals should consider
national law in interpreting treaty terms and that an express renvoi is not required. This
is uncontroversial. It does not mean, however, that a tribunal should turn to national
law in all cases. If it appears, taking into account the object and purpose112
of a treaty
that the parties to it did not wish to give to the term used therein a particular or specific
meaning which it may have in national law, but rather a general one, a treaty term can
be interpreted independently from the national law of the parties to the treaty.
216. The Tribunal is equally sensitive to the Respondent’s contention that “a tribunal does
not have authority to autonomously articulate rules for the creation or establishment of
nationality”.113
This too is uncontroversial. The Tribunal certainly considers German law
to identify the characteristics or attributes of a KG under the law of its constitution.
111
ICCA’s Guide to the Interpretation of the 1958 New York Convention, p.13 (“In principle, the terms
used in the [New York Convention] have an autonomous meaning (Article 31 Vienna Convention.).”
112
The object and purpose of a treaty can be ascertained in particular from its preamble. Here, the
parties to the Treaty in its Preamble “recogniz[e] that the encouragement and reciprocal protection of
such investments are suitable means to strengthening all forms of economic activities, especially
those associated with private enterprise”.
113
Rej., §382.
57
Being so informed about national law, it must then examine whether an entity with the
characteristics given by its national law falls within the autonomous concept of a
“juridical person” under the Treaty.
217. The Tribunal thus concludes that the term “juridical person” must be interpreted
autonomously. The next question is for the Tribunal to determine what this term
means.
218. The first thing that strikes the interpreter when reading Article 1(3) is the opposition
between “national persons” on one side and “juridical persons” on the other. A “juridical
person” is an “artificial person”. However, such an artificial person can be an investor
like a natural one. Hence, it must have similar legal attributes, such as the capacity to
invest, enter into contracts, acquire property, and sue and be sued in its own name.
219. This understanding is confirmed when looking at dictionary definitions. For instance,
The Legal Dictionary defines the term “juridical person” as:
“a body recognized by the law as being entitled to rights and duties in the
same way as a natural or human person, the common example being a
company”.114
220. The Abaclat tribunal came to the same conclusion interpreting the same term “juridical
persons”, which also appears in Article 25(2) of the ICSID Convention.115
It was faced
with associations formed under Italian law, which under such law lack legal personality,
but enjoy the attributes specific to legal entities:
“Based on the wording of Article 1(2)(b) BIT and the situation under
Italian law, it has to be concluded that not only entities with full legal
capacity qualify as “juridical persons” under Article 1(2)(b) BIT. Under
Article 36 Italian Civil Code […] associations not recognized as legal
entities (hereinafter “non-recognized associations”) have the procedural
capacity to stand in court and to be represented by their president or
director. In other words, whilst non-recognized associations may not
have legal personality, they possess certain attributes of legal personality
and in particular the right to sue and to be sued. To the extent that the
relevant Claimants had the capacity to make the relevant investment,
and that they also have the statutory right to litigate in their own names,
and that their constituents all have the requisite nationality, the “juridical
114
http://legal-dictionary.thefreedictionary.com/Juridical+person.
115
Article 25(2)(b) of the Convention reads as follows: “(2) “National of another Contracting State”
means: […] (b) any juridical person which had the nationality of a Contracting State […]”.
58
person” requirement of Article 25(2)(b) ICSID Convention must be
considered satisfied”.116
221. There is common ground between the Parties that, under German law, KGs have legal
capacity to invest, conclude contracts, acquire property, and sue and be sued in their
own name.117
In the Tribunal’s view and as will further be seen below, the fact that
German KGs are not “juristische person” under German law does not alter this
conclusion. Indeed, the reason for the lack of legal personality lies in the mode of
creation of the entity. A corporation with legal personality comes into existence through
registration, while a KG is constituted by agreement. Beyond this difference, the legal
capacity of these entities is identical when it comes to entering into legal transactions,
owning assets, or standing to sue or to be sued in court.118
222. It follows from the foregoing discussion that the ordinary meaning of the term “juridical
person” used in Article 1(3) of the Treaty taken in its context refers to an entity which
can invest, enter into contracts, acquire property, sue and be sued in its own name.
(ii) Object and purpose of the Treaty
223. After the ordinary meaning and context, the Tribunal turns to object and purpose. The
overall objects and purposes of the Treaty are set out in its Preamble, which provides
that Germany and the Czech Republic enter into the Treaty to “intensify economic
cooperation between the two States” and to “create favourable conditions for
investments by investors from either State in the territory of the other State”.119
116
Abaclat and Others v. the Argentine Republic, ICSID Case No ARB/07/5, Decision on Jurisdiction
and Admissibility, 4 August 2011 (“Abaclat”), §417(i).
117
Objections to Jurisdiction, §47, stating that Claimant 4 is a limited partnership, and referring to
Weipert, L., Handelsgesetzbuch (Commercial Code), Ebenroth/Boujong/Joost/Strohn, C.H. Beck,
2014, 3rd Edition, RLA-011 which sets out the rights and duties of a limited partnership (“By becoming
a limited partnership—i.e., an exoteric partnership [an entity] acquires […] the ability (i) to acquire
rights; (ii) to enter into liabilities, (iii) to acquire property and other in rem rights in real property; (iv) to
file complaints before courts of law; and (v) to have complaints filed against it before courts of law—all
in its own name. Limited partnerships are, therefore, acknowledged by law as being a legally
independent investment fund (Sondervermögen) of its collectively affiliated partners without being a
legal person itself.”); Reply, §139.
118
See Exh. RLA-009, Judgment of the German Federal Court of Justice dated 29 January 2001, II
ZR 331/00, (“It is therefore practically without contention that general partnerships (offene
Handelsgesellschaften) and limited partnerships (Kommanditgesellschaften) are capable of being
bearers of rights and duties and are, by extension, sui juris without the collective unit having the
status of a legal person.”).
119
Exh. C-078.
59
224. The Respondent argues that Claimant 4 not being a “juridical person” is not an
“investor” and thus cannot initiate an arbitration under Article 10 of the BIT. At the
same time, the Czech Republic does not dispute that Claimants 1, 2 and 3 are the
limited partners (Kommanditisten) of Claimant.120
Claimants 1, 2 and 3 have the
capacity to make the relevant investment and also have the right to litigate in their own
names. In other words, the Respondent contends that an entity (such as a KG) whose
constituents are fully entitled to make a protected investment under the Treaty and who
can both sue and be sued in their own name in respect of their investment, are not
allowed to initiate an arbitration under the Treaty. The Tribunal does not see why this
should be the case. As above, the object and purpose of the Treaty is not only to
“intensify economic cooperation”, but also to “create favourable conditions for
investment”. It would be contrary to the object and purpose of the Treaty to deny
entities that have made protected investments under the Treaty the right to invoke
protection for violation of the rights concerning such investments.
225. The Abaclat tribunal came to the same conclusion in respect of the ICSID Convention
and the Argentina-Spain BIT:
“Where a non-natural investor falls within the definition of juridical
persons provided for in the BIT, and where such investor has under the
law applicable to it the legal capacity to acquire an investment protected
under the BIT and to sue and to be sued, it would be contrary to the
purpose of the BIT and the ICSID Convention to deny such investor the
capacity to initiate ICSID arbitration. Indeed, it would make no sense to
allow on one hand an investor to make an investment protected under
the BIT, and deny on the other hand such investor the right to invoke
protection under the BIT for violation of the rights attached to such
investment”.121
226. The Tribunal further notes that Czech law also knows the concept of a KG. However,
unlike German law, Czech law does not treat KGs differently from other corporate
entities. Under Czech law, a corporate entity, entered into a register, be it a KG or
another form, is considered a juridical person.122
Thus, if the Respondent’s argument is
followed, it would mean that a Czech KG investing in Germany would benefit from the
120
Exh. C-025a, Excerpt from the Commercial Register for JSW Solar (zwei) GmbH & Co. KG), 9 May
2014; Exh. 025b, Excerpt from the Commercial Register for JSW Solar (zwei) Verwaltungs-GmbH, 9
May 2014; Exh. 025c, List of Shareholders filed with the Commercial Register for JSW Solar (zwei)
Verwaltungs-GmbH, 15 July 2010.
121
Abaclat, §417(iii).
122
Reply, §137, relying on Exh. C-091, Letter of Rödl & Partner, advokáti, k.s.to Mr , p.2,
2 December 2014.
60
protections of the Treaty, but a German KG investing in the Czech Republic would not.
Such distinct treatment of German and Czech KGs would be contrary to the principle of
reciprocal protection expressly stated to be the object and purpose of the Treaty as
stated in the Preamble of the Treaty:
“recognising that the encouragement and reciprocal protection of such
investments are suitable means to strengthening all forms of economic
initiatives, especially those associated with private enterprise”.123
227. Moreover, unlike in other treaties the object and purpose of which are neutral towards
economic initiatives, the BIT’s Preamble just quoted, expressly records the Contracting
States’ wish to strengthen “all forms” of economic initiatives, “especially those
associated by private enterprises”.
228. Furthermore, the Claimants’ observation that one third of all German companies are
KGs124
was not disputed. If the Respondent’s arguments are followed, it would mean
that one third of all private enterprises in Germany would not be covered by the Treaty.
This can hardly be said to meet the object and purpose of the Treaty just stated. No
cogent reason has been advanced why the Contracting Parties would have intended
such a result.
229. An analysis of the ordinary meaning, context, and object and purpose of the Treaty
leads the Tribunal to conclude that a “juridical person” in Article 1(3) is an entity with
the legal capacity to invest, conclude contracts, acquire property and sue and be sued.
It is not disputed that KGs have these attributes. Thus, KGs are “juridical persons”
falling within the ambit of Article 1(3) of the Treaty. The supplementary means of
interpretation provided in Article 32 of the Vienna Convention, to which the Tribunal
now turns, confirm this interpretation.
(iii) Treaties with third States
230. Both Parties have relied on other treaties concluded by Germany in support of their
respective submissions. The Respondent draws attention to the fact that Germany has
entered into BITs that contain a broad definition of investor which includes German law
123
Exh. C-078.
124
Exh. C-097, Chart on Business Register.
61
partnerships like KGs.125
Hence, it argues that when “[i]n accordance with the effet utile
principle of treaty interpretation, the Tribunal must give effect to the express words of
the Treaty in Article 1(3) by giving effect to the limitation inherent in this formulation for
the definition of an “investor” for otherwise the express extension to German law
partnerships in other investment treaties concluded by Germany would be rendered
meaningless”.126
By contrast, the Claimants point out that the treaties invoked by
Respondent are those in which the term “investor” is defined specifically for each
contracting state. Therefore, they cannot be compared to this Treaty which has a
single definition of investor for both Contracting Parties. They further note that some
German BITs require that an entity be “incorporated/organized” under the laws of
Germany,127
which purportedly shows that when German BITs are meant to refer to
national law, they do so explicitly.
231. Treaties addressing the same subject matter entered into with third States may be of
some assistance in the interpretation exercise. Tribunals in Churchill Mining,128
AAPL129
, Plama130
, Metal-Tech131
and ICS132
have for instance referred to other treaties
concluded by the contracting parties with third States.
125
Exh. RLA-012, Treaty between the Federal Republic of Germany and the People's Republic of
Bulgaria on the Mutual Promotion and Mutual Protection of Investments of 12 April 1986 (“any legal
person and any partnership (Handelsgesellschaft), or other company and association with or without
a legal personality having its seat in the territory to which this Treaty is applicable and lawfully existing
under the laws regardless of whether the liability of the partners, shareholders, or members is limited
or unlimited and whether its business is intended to be for profit or not”.).
126
SoD, §170.
127
Exh. RLA-013, Treaty between the Federal Republic of Germany and Federal Republic of Brazil
on the Promotion and Reciprocal Protection of Investments of 21 September 1995 (“legal persons,
partnerships (Handelsgesellschaften), or other companies and associations with or without a legal
personality, which (i) have their seat in the Sovereign Territory of one of the contracting parties and (ii)
have been incorporated/organized under their legal regime regardless of whether their business is
intended to be for profit or not and (iii) make any capital investment within the Sovereign Territory of
the other contracting party.”).
128
Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, ICSID Case No.
ARB/12/14 and ARB/12/40, Decision on Jurisdiction, 24 February 2014 (“Churchill Mining”), §182
(“Treaties on the same subject matter concluded […] with third States can legitimately be considered
as part of the supplementary means of interpretation. For instance, in Oil Platforms, the ICJ had
recourse to treaties on the same subject-matter concluded by one disputing party with third States.
This approach also found resonance in investment treaty arbitration […]”.).
129
Asian Agricultural Products Limited v. Democratic Socialist Republic of Sri Lanka, ICSID Case No.
ARB/87/3, Final Award, 27 June 1990 (“AAPL”), §40.
130
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on
Jurisdiction, 8 February 2005 (“Plama”), §195 (“It is true that treaties between one of the Contracting
Parties and third States may be taken into account for the purpose of clarifying the meaning of a
treaty’s text at the time it was entered into.”).
131
Metal-Tech, §159.
62
232. Having reviewed the German treaty practice invoked by the Parties with respect to the
definition of the term “investor”,133
the Tribunal makes the following observations:
 While some German BITs contain a separate definition of “investor” for each
Contracting State, 13 German BITs (including the German-Czech BIT) do not;
 Out of these 13, two treaties (Germany-Poland (1989) and Germany-Russia
(1989)) pre-date the Treaty and have definitions of “investor” similar to the one
of the Treaty;134
 9 of the remaining 10 treaties that post-date the Treaty contain language
“[association/organization] with or without legal personality”.135
The GermanyMexico
BIT employs an altogether different formulation speaking of
“commercial companies or other companies or associations”;136
 All of the treaties examined that contain a separate definition of “investor” for
each Contracting State whether they pre-date or post-date the Treaty, use the
wording “[association/organization] with or without legal personality” within that
definition.
233. It follows from these indications that German treaty practice changed after 1990, the
year of the Treaty, to expressly include in the definition of “investor” the mention of
“associations/organizations with or without legal personality”. After 1993, the treaties
132
ICS v Argentina, Ad Hoc Arbitration, UNCITRAL Arbitral Rules, PCA Case No 2010-9, Award, 10
February 2012 (“ICS”), §296.
133
Neither Party supplied information on Czech treaty practice. Further, the Claimants submitted a
table reproducing the various definitions of “investor” in some German BITs (Exh. C-094). The
Respondent did not contest the correctness of this table.
134
Germany-Poland BIT (“The term “investor” shall mean a natural person with permanent domicile or
a juridical person with its seat in the respective area of application of this Treaty, entitled to engage in
investments.”); Germany-Russia BIT (“The term “investor” means an individual having a permanent
place of residence in the area covered by this Agreement, or a body corporate having its registered
office therein, authorized to make investments.”).
135
Germany-Latvia (1993); Germany-Slovenia (1993); Germany-South Africa (1995); GermanyMacedonia
(1996); Germany-Croatia (1997); Germany-Venezuela (1998); Germany-Thailand (2002);
Germany-Ethiopia (2004); Germany-Guinea (2006).
136
Germany-Mexico (1998): “The term “companies” refers to any juridical person, as well as any
commercial companies or other companies or associations, constituted or organized under the
applicable law of a Contracting State whether or not for profit, whose territorial seat is located in the
territory of any of the Contracting States.”
63
examined with common definitions consistently use “with or without personality”.137
This appears as an evolution of treaty drafting clarifying the meaning present in earlier
BITs, rather than – as the Respondent suggests – a sign that Germany wished to
exclude entities without legal personality from the ambit of the Treaty. No cogent
reason is indeed advanced why German KGs investing in the Czech Republic would
not benefit from treaty protection when German KGs investing in other countries would.
234. Thus, German treaty practice confirms the meaning arising out of the ordinary meaning
of the term “juridical person” in its context and taking into account the object and
purpose of the Treaty.
(iv) Decisions of other tribunals
235. In support of its submissions, the Respondent relies on the majority view of the tribunal
in Renta4.138
There, the claimants were three Spanish investment funds and four
variable stock companies. As the Russia-Spain BIT required that an “investor” be a
“corporate body”, and as the investment funds could not be considered “corporate
bodies” under Spanish law, the tribunal declined jurisdiction over the funds.139
The
Tribunal is unable to see the relevance of this decision to the present case.
236. First, the definition of “investor” in the Spain-Russia BIT is materially different from that
of the Treaty. It includes two references to domestic legislation (“in accordance with the
legislation of either Party”, “under the legislation in force there”).140
As was discussed
above, Article 1(3) of the Treaty does not refer to national law. Second, the Tribunal
has reached its conclusion after conducting a thorough analysis. It has examined the
context, object and purpose of the Treaty and considered the supplementary means of
interpretation as well. In the circumstances, and in view of the materially different treaty
provisions, this Tribunal cannot simply follow the views of the Renta4 tribunal.
137
Except for Germany-Mexico BIT, which uses “commercial companies or other companies or
association”, which is a broader formulation.
138
Renta4 S.V.S.A. et al. v. Russia, SCC Case No. 24/2007, Award on Preliminary Objections,
20 March 2009 (“Renta4”), §§121–31.
139
Renta4, §§121–131.
140
Article 1(1) of the Russia-Spain BIT: “The term “investor” shall mean: […] (b) Any corporate body
established in accordance with the legislation of either Party, domiciled in its territory, and allowed
under the legislation in force there to make investments in the territory of the other Party.”
64
237. For similar reasons, the dicta in Impregilo141
and LESI142
are unavailing as well.
238. The Tribunal does, however, agree with the conclusions of the tribunal in Abaclat.
There, the tribunal was called to interpret the words “persona jurídica” (Spanish) or
“persona giuridica” (Italian) found in the definition of the term “investor” in the ItalyArgentina
BIT.143
The tribunal concluded that although some of the claimants were not
“persona giuridica” under Italian law, they were nevertheless protected by the ItalyArgentina
BIT as they could make investments, and litigate in their own name. While
the wording in the Italy-Argentina BIT was admittedly broader than the one applicable
in this case,144
the reasoning of the tribunal is enlightening to the extent it focuses on
an entities’ capacity to make investments and sue and be sued:
“With regard to the nature of the capacity necessary for corporations to
benefit from the protection of the BIT and be a party to the present
arbitration, the Tribunal is of the opinion that neither Article 1(2)(b) BIT
nor Article 25 ICSID Convention limits the scope of eligible entities to
those having full legal capacity, and also encompasses entities which
enjoy limited civil capacity to the extent that such entities have the
capacity to make an investment under the BIT and further to sue and to
be sued”.145
(v) Conclusion
239. For the foregoing reasons, the Tribunal holds that the term “juridical person” in Article
1(3) of the Treaty includes KGs. As a result, Claimant 4 is an “investor” under the
Treaty. Consequently, the Respondent’s jurisdictional objection in respect of Claimant
4 must be rejected. The Tribunal does have jurisdiction over Claimant 4.
240. Having reached this conclusion, the Tribunal need not address the Respondent’s
submission that Claimants 1-3 cannot assert the claims of Claimant 4. Similarly, the
141
Impregilo S.p.A. v. Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction, 22 April 2005
(“Impregilo”).
142
Consorzio Groupement L.E.S.I.-DIPENTA v. People’s Democratic Republic of Algeria, ICSID Case
No. ARB/03/08, Award of 10 January 2005 (“LESI”), §§37 et. seq.
143
Spanish Original: “2. El término ― “inversor” comprende toda persona física o jurídica de una
Parte Contratante que haya realizado, realice o haya asumido la obligación de realizar inversiones en
el territorio de la otra Parte Contratante. Por ― “persona jurídica” se entiende, con relación a cada
una de las Partes Contratantes, cualquier entidad constituida de conformidad con la legislación de
una Parte Contratante, con sede en el territorio de esa Parte y por esta ultima reconocida, tales como
entidades públicas que realizan actividades económicas, sociedades de personas o de capitales,
fundaciones y asociaciones, independientemente de que su responsabilidad sea limitada o no.”
144
Ibid.
145
Abaclat, §§416 et. seq.
65
Claimants revised request for relief reproduced above [§146] has become moot.
Accordingly, the Tribunal can dispense with ruling on the Respondent’s objections to
this revised request.
2. Does EU Law Deprive this Tribunal of Jurisdiction?
a. The Commission’s position
241. According to the Commission, the “decisive question” for this Tribunal’s jurisdiction is
whether, on the day on which the Claimants filed the Request for Arbitration, the Czech
Republic’s offer to arbitrate contained in Article 10 of the Treaty was valid under public
international law. The EC submits that the Respondent’s offer was invalid for several
reasons: first, because the Treaty as a whole must be regarded as terminated, since
the conclusion of the Treaty on Accession of the Czech Republic to the EU implied the
termination of the BIT pursuant to Article 59 of the VCLT; second, because the relevant
provisions of the Treaty cannot be applied in light of Article 351 of the Treaty on the
Functioning of the European Union (“TFEU”) as they are incompatible with the TFEU;
and, third, because it results from the operation of the conflict rules in Article 30(3) of
the VCLT.
242. While these arguments have been rejected by other arbitral tribunals, the Commission
submits that this Tribunal should undertake a “fresh analysis” as “there are three new
elements that those Arbitral Tribunals have either overlooked (the relevance of Article
351 TFEU), or that constitute new elements that could not have been known to them
because they post-date the awards (the judgment of the ECJ in Pringle), or were not
yet relevant for their decision (the entry into force of the Treaty of Lisbon, and in
particular the new exclusive competence of the Commission in the field of investment
protection)”.146
b. The Claimants’ position
243. The Claimants deny that the Treaty has been terminated due to the Czech Republic’s
accession to the EU or rendered inapplicable due to the Lisbon Treaty. Investment
tribunals, so say the Claimants, have repeatedly concluded that BITs remain in force
following a State’s accession to the EU. The Treaty grants specific protections to
146
Commission’s Amicus Curiae Submission, §75.
66
investors and EU law cannot interfere with either the Tribunal’s jurisdiction or those
protections.
244. The Claimants note that the Contracting States have not terminated the Treaty. A third
party such as the Commission cannot insist that the Treaty is terminated, nor can the
Tribunal consider the Treaty terminated without hearing Germany. Moreover, the EU’s
acknowledgement that it has proceeded to the second step of the infringement
procedure against five EU Member States for their failure to terminate their intra-EU
BITs, “underlines once again that the Intra-EU BITs are valid and can only be
terminated by the contracting states”.147
245. The Claimants refute the Commission’s submission that there is a conflict between the
Treaty and EU law that affects the Treaty’s validity. The Parties to the EU treaties and
the BIT are distinct as are the protections provided. Other investment tribunals have
come to the same conclusion.
246. The Claimants further submit that the reliance on Article 344 of the TFEU is misplaced.
First, Article 344 only applies between two Member States of the EU. It does not apply
between a Member State and an investor. Second, as Article 344 is limited to issues of
interpretation and as EU law only applies as fact in this case, “any issue of
interpretation, application or compatibility is irrelevant”.148
247. Similarly, the Commission’s invocation of Article 351 of the TFEU is inapposite.
According to the Claimant, that provision applies to agreements between a Member
State and a third country. Agreements concluded between a Member State and a State
that only later becomes an EU Member are excluded.
248. Finally, the Claimants also dispute that there is a conflict with EU competences. Article
2(2) of the TFEU provides that, where there is a shared competence, Member States
may act, provided that the EU has not acted. The EU has not exercised its competence
in a way that would deprive the investor of its rights and protections arising under the
Treaty. As such, there is no conflict with the substantive provisions of EU law.
147
Claimants’ communication of 14 November 2016.
148
Claimants’ Comments on the Amicus Curiae Submission, §57.
67
c. The Respondent’s position
249. Unlike the Commission, the Respondent does not consider that the applicability of EU
law deprives this Tribunal of jurisdiction. Indeed, the Czech Republic “does not join the
Commission’s objections to this Tribunal’s jurisdiction”.149
d. Analysis
250. This jurisdictional objection has not been raised by the Parties to the present dispute,
but by the Commission, an amicus curiae. Ordinarily, it is not open to a non-disputing
party to raise a defense of lack of jurisdiction. However, because the Tribunal’s
jurisdiction arises from a treaty as opposed to a contract, the Tribunal believes that it
can and should review its jurisdiction ex officio.150
As a result, the Tribunal will address
this objection.
251. Article 10 of the Treaty sets out the Czech Republic’s standing offer to arbitrate
disputes with German investors. In the Commission’s opinion, this provision has
become inoperative upon the Czech Republic’s accession to the EU in 2004, or, at the
latest, when the Lisbon Treaty entered into force. The Tribunal notes that – as the
Commission itself recognizes – its principal arguments are not new. They have been
rejected by other arbitral tribunals.151
252. The Commission’s first objection is that the Treaty as a whole must be regarded as
terminated pursuant to Article 59 of the VCLT. The Tribunal does not share this view.
Article 59 of the VCLT provides the following rules applicable in a situation where a
later treaty covers the same subject matter as an earlier treaty:
“1. A treaty shall be considered as terminated if all the parties to it
conclude a later treaty relating to the same subject matter and: (a) it
appears from the later treaty or is otherwise established that the parties
intended that the matter should be governed by that treaty; or (b) the
149
Respondent’s Comments on the Amicus Curiae Submission, §4.
150
See, for instance, ICAO Council, Judgment of 18 August 1972, ICJ Rep. 1972, p.52, §13 (“[T]he
Court must […] always be satisfied that it has jurisdiction, and must if necessary go into that matter
proprio motu.”).
151
See among others Binder v. Czech Republic, Ad Hoc, Award on Jurisdiction, 6 June 2007
(“Binder”); Eastern Sugar B.V. v. The Czech Republic, SCC Case No. 088/2004, Partial Award, 27
March 2007 (“Eastern Sugar”); Achmea; Euram. For a summary of the tribunals’ treatment of the
Commission’s amicus arguments, see Exh. R-250, “Further attempts by the European Commission to
eradicate intra-EU BITs”, Volterra Fietta, October 2015.
68
provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the
same time.
2. The earlier treaty shall be considered as only suspended in operation
if it appears from the later treaty or is otherwise established that such
was the intentions of the parties”.
253. Article 59 of the VCLT thus comes into operation only if inter alia the treaty under
consideration and the later treaty have the same subject matter. In the present case,
this means that Article 59 of the VCLT will only come into play if the Treaty and the
TFEU relate to the same subject matter.152
This is obviously not the case. To take but
one example, Article 10 of the Treaty allows an investor to sue a host state. No parallel
provision exists in the TFEU.153
Similarly, EU law does not provide a protection similar
to the FET found in the BIT entered into by the Czech Republic.154
Tribunals in Eastern
Sugar155
and Oostergetel156
conducting a similar analysis came to the same
conclusion.157
Both tribunals went on to observe that the other prerequisites for
applying Article 59 were not met either.158
152
The Tribunal agrees with the finding of the Achmea tribunal on the notion of “identity” in Art. 59 of
the VLT: “Nothing in Article 59 requires that the two treaties should be in all respects coextensive; but
the latter treaty must have more than a minor or incidental overlap with the earlier treaty.” Achmea,
§242.
153
See for instance Eastern Sugar, §§164-165 (“The BIT also provides for a special procedural
protection in the form of arbitration between the investor state and the host state and, especially
arbitration of a “mixed” or “diagonal” type between the investor and the host state, as in the present
case […] From the point of view of the promotion and protection of investments, the arbitration clause
is in practice the most essential provision of Bilateral Investment Treaties […] EU law does not
provide such a guarantee.”).
154
The Tribunal agrees with the reasoning of the Achmea tribunal which observed the following in
respect of the Dutch-Slovak BIT: “The Tribunal does not accept the submission that the protection
afforded by the BIT provision on fair and equitable treatment is entirely covered by [EU law].
Respondent does not allege that there is any principle of EU law that specifically forbids treatment
that is not fair and equitable. The Tribunal does not consider that any such principle independent of
concepts of non-discrimination, proportionality, legitimate expectation and of procedural fairness, is
yet established in EU law.” Achmea, §250.
155
Eastern Sugar, §§159-160 (“the Arbitral Tribunal does not accept the Czech Republic's argument
that the EU treaty as the later treaty (as between the Czech Republic and the Netherlands) covers the
same subject matter as the BIT, the earlier treaty. While it is true that European Union law deals with
intra-EU cross border investment, say between the Netherlands and the Czech Republic, as does the
BIT, the two regulations do not cover the same precise subject-matter.”).
156
Oostergetel, Decision on Jurisdiction, 30 April 2010, §74.
157
Id.
158
Eastern Sugar, §§167-168 (“the Czech Republic has not established that the common intention of
the Czech Republic and the Kingdom of the Netherlands was that the EU Treaty should supersede
the BIT. Third, the Arbitral Tribunal is of the view that the BIT and the EU Treaty are not
incompatible”); Oostergetel, Decision on Jurisdiction, 30 April 2010, §74 (“there is no indication that
the Parties would have intended for the BIT to be superseded by the EC Treaty […] the Tribunal does
69
254. The Commission’s second objection is that the relevant provisions of the Treaty cannot
be applied in light of Article 351 of the TFEU, which mandates the primacy of EU law in
relation to international agreements. Here too, the Tribunal cannot follow this line of
argument.
255. Article 351 of the TFEU (earlier Article 307 of the TEU) states that the EU treaties do
not affect the international obligations of Member States assumed before a State’s
accession to the EU:
“The rights and obligations arising from agreements concluded before 1
January 1958 or, for acceding States, before the date of their accession,
between one or more Member States on the one hand, and one or more
third countries on the other, shall not be affected by the provisions of the
Treaties”.
256. It is clear from such provision that Article 351 of the TFEU applies only to States. Here,
the Claimants are not States. Further, the provision applies only between Member
States and non-Member States. Here, both Germany and the Czech Republic are
Member States. In the circumstances, Article 351 of the TFEU simply does not apply,
and the Commission’s argument must be rejected. The tribunal in AES Summit
reached a similar conclusion.159
257. As a further ground related to its second objection, the Commission submits that Article
10 of the Treaty is incompatible with Article 344 of the TFEU. Here too, the Tribunal
does not agree. Article 344 TFEU reads as follows:
“Member States undertake not to submit a dispute concerning the
interpretation or application of the Treaties to any method of settlement
other than those provided for therein”.
258. On its face, this provision only applies to disputes involving two or more EU Member
States. Further, Article 344 of the TFEU does not exclude the possibility of referring
intra-EU investor-State disputes to international arbitration. As was held in Mox Plant,
not see any direct conflict between the BIT and the relevant EU law provisions that would impede it
from applying the two sets of legal norms simultaneously, should such a need arise.”).
159
AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID
Case No. ARB/07/22, Award, 23 September 2010 (“AES Summit”), §7.6.10-7.6.11 (“the Tribunal
concludes that Article 307 […] is not applicable, as such, in this arbitration […] Article 307 only applies
to agreements between member states and non-member states, and Hungary and the United
Kingdom are both member states. Moreover, the Claimants are not states, and even if sometimes
individuals are granted rights under international law, Article 307 of the EC Treaty specifies that it only
applies to states.”).
70
Article 344 prohibits EU Member States from submitting inter-State disputes regarding
the interpretation and application of EU law to a method of settlement not contained in
the EU Treaties. It does not prohibit the submission of investor-State disputes to
another method of settlement not contemplated in the EU Treaties.160
259. The third objection advanced by the Commission concerns the conflict rules in Article
30(3) of the VCLT. Here the Commission argues that specific provisions of the Treaty,
including Article 10 (from which the Tribunal derives its jurisdiction) cannot be applied
as they are incompatible with EU law, with the result that the Tribunal lacks jurisdiction
to hear the present case. Once again, the Tribunal disagrees. Article 30 of the VCLT
reads in relevant part as follows:
“1. Subject to Article 103 of the Charter of the United Nations, the rights
and obligations of States Parties to successive treaties relating to the
same subject-matter shall be determined in accordance with the
following paragraphs.
[…]
3. When all the parties to the earlier treaty are parties also to the later
treaty but the earlier treaty is not terminated or suspended in operation
under Article 59, the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty”.
260. Article 30(3) is thus concerned with the priority between particular provisions of an
earlier and a later treaty, as opposed to Article 59 which deals with the termination of
an entire treaty. While Article 30(3) may thus be triggered “by the slightest
incompatibility”, Article 59 requires that the earlier treaty be “so far incompatible” with
the later treaty that both treaties cannot be applied at the same time.161
261. As mentioned above, Article 10 of the Treaty is compatible with EU law, which is
limited to inter-State disputes concerning the interpretation and application of EU law,
and does not extend to investor-State arbitration as contemplated in Article 10 of the
BIT. There is thus no question of incompatibility which would call for the application of
Article 30(3) of the VCLT. The tribunal in Binder v. Czech Republic, which, like the
160
See also for instance Electrabel, §4.151 (“there is no provision equivalent to Article 292 EC (now
Article 344 TFEU) dealing with arbitration between two or more private parties, nationals of Member
States, or with mixed disputes settlement mechanisms such as investor-state arbitration between
individuals, nationals of EU Member States and an EU Member State under the ICSID Convention or
other international instruments. Article 292 EC is not applicable to these arbitration tribunals”).
161
Achmea, §§240-241.
71
Tribunal in the present case, was called upon to apply the provisions of the GermanCzech
BIT at issue here came to the same conclusion.162
262. Tribunals have repeatedly taken the view that the offer to arbitrate embodied in a treaty
concluded between an EU Member State and a then Non-Member State which later
acceded to the EU, i.e. an intra-EU BIT by virtue of accession, remained valid after the
date of accession.163
The Tribunal sees no reason to deviate from this line of cases.
None of the “three new elements” advanced by the Commission serves to alter that
position.
263. First, contrary to the Commission’s submission, the operation of Article 351 of the
TFEU (or its predecessor, Article 307 of the TEU) has not been “overlooked”. As can
be seen from the foregoing discussion, this Tribunal has considered and rejected its
application. Other tribunals have done the same.164
264. Second, the Commission has not shown how the Pringle decision of 2012 would apply
in the present case. The Tribunal understands that it only applies to the conclusion of
future agreements between Member States. Since the Treaty has been in force since
1992, it is difficult to see how the decision could apply here, in the absence of any
reason being provided to the contrary.
265. Finally, the Commission points out that after the entry into force of the Lisbon Treaty,
the EU has exclusive competence for concluding international agreements on
investment protection. As a result, pursuant to Article 59 or Article 30(3) of the VCLT,
the relevant provisions of the Treaty on which the present case is founded, are
inapplicable and the Tribunal lacks jurisdiction. The Tribunal has difficulty accepting
this proposition. For Articles 59 or 30(3) of the VCLT to apply, the Commission would
have to establish that the EU’s new competence over “foreign direct investment” after
the Lisbon Treaty covers the same subject matter as the Treaty. The Commission has
not done so. In any event, as noted, one of the reasons for rejection of the
Commission’s intra-EU jurisdictional objections is that EU law contains no equivalent of
162
Binder, §65 (“The Arbitral Tribunal does not find either that Article 10(2) of the Czech-German BIT,
which provides for a specific procedural protection in the form of arbitration between the investor and
the host State, is in conflict with EC law.”).
163
See, for instance, Eastern Sugar; Achmea; Binder; Oostergetel, Decision on Jurisdiction of 30 April
2010.
164
See, for instance, Electrabel, §4.178 et. seq.
72
the arbitration clause in the Treaty. The Lisbon Treaty has not changed this situation.
Accordingly, for the same reasons as those mentioned above [§§252 et. seq.], the
Commission’s argument must be rejected.165
266. For all these reasons, the Tribunal concludes that the Commission’s arguments
opposing this Tribunal’s jurisdiction are not well-founded.
267. It follows from the analysis above that the Tribunal has jurisdiction over the dispute
before it. The Tribunal must therefore review the merits of the dispute. It will first
consider the Respondent’s arguments in respect of the police powers doctrine (section
(C) below) and then the Claimants’ allegations in respect of the Respondent’s
breaches of the Treaty (sections (D)-(E) below).
C. APPLICATION OF THE DOCTRINE OF POLICE POWERS
268. For the Respondent, it is “beyond doubt” that obligations in investment treaties must be
interpreted against the background of the doctrine of police powers in general
international law. This doctrine, so says the Respondent, applies especially to
measures of taxation such as the Solar Levy, in respect of which international law
permits only a “limited degree of scrutiny”.
269. The Claimants oppose the Respondent’s submissions, contending first that as the
Solar Levy effectively results in a reduction of the FIT, which the Czech Republic could
not have otherwise achieved, the Solar Levy is not a good faith taxation measure.
Further, the Claimants point to the lack of indications that the Contracting States
intended protections offered by general international law, to restrict the application of
the BIT. In any event, the Respondent cannot rely on the doctrine of police powers to
justify its breaches of the Treaty, because the doctrine “finds its limits [in cases] where
the State has undertaken very specific commitments of stability”.166
270. The Tribunal first notes the Parties’ disagreement on whether the Solar Levy is a “good
faith” taxation measure. In the Tribunal’s view, the true nature of the Solar Levy would
be relevant if the BIT contained a tax carve out ruling out or restricting the application
165
The tribunal in WNC Factoring, relying on Eureko reached the same conclusion (WNC Factoring
Limited v. The Czech Republic, Award, 22 February 2017, §307).
166
Reply, §296.
73
of the treaty to tax measures. This is not the case, save for the limited exception in
Article 3(4)167
which has no relevance here. In the absence of any cogent argument
that the Treaty precludes the application of the umbrella clause, and the FET and FPS
standards to tax measures, the Tribunal considers that it need not decide whether the
Solar Levy is a “good faith” taxation measure or not. Further and in any event, the real
nature of the Solar Levy is immaterial to the Tribunal’s analysis. The dispute is
principally on whether the relevant framework contains a stabilization commitment
giving rise to legitimate expectations as claimed by the Claimants. As will be seen from
the discussion that follows, the Tribunal comes to the conclusion that the applicable
legal framework guarantees to solar PV investors a FIT level that provides (i) an
adequate return on investment equal to at least 7% per year over the 15-year (later 20year)
life of the installation, and (ii) a payback of investment costs in no more than 15
years. These guarantees continue to be maintained in respect of the Claimants. This
conclusion is indifferent to the characterization of the Solar Levy as a true taxation
measure or otherwise.168
271. This does not mean, however, that the imposition of the Solar Levy – whether a true
taxation measure or otherwise – did not affect the Claimants’ revenue as a matter of
fact. Indeed, while the grid operators continue to pay the FIT to solar RES producers,
they do so after withholding the Solar Levy. Thus, while the Solar Levy as a matter of
law did not directly reduce the FIT, the effect is that the Claimants’ revenue is reduced
by the amount of the Levy. The Constitutional Court came to the same conclusion,169
which the Respondent also accepts.170
167
Article 3(4) of the Treaty: “The treatment granted under this Article shall not relate to advantages
which either Contracting State accords to investors from third States by virtue of an agreement for the
avoidance of double taxation in the field of taxes on income and assets or other agreements
regarding matters of taxation.”
168
The Claimants agree. See Reply, §162 (“[E]ven if the solar levy was considered a taxation
measure, then it would still be fully subject to the Respondent’s obligations under the BIT. The same
applies to the Respondent abolishing the tax regulations which were part of the Support Scheme.”).
169
Exh. R-084 §45, (“The Constitutional Court notes that although the provisions of Section 6 of Act
No.180/2005 Coll., on Promotion of Electricity Production from Renewable Energy Sources and on
Amendments to Certain Laws (Act on Promotion of Exploitation of Renewable Energy Sources), as
amended by Act No. 137/2010 Coll., that set the amount of price of electricity from renewable sources
and the amount of green bonuses were not affected by the amendments of Act No. 402/2010 Coll.,
there is no doubt that in consequence of the insertion of the new provisions of Section 7a and the
following sections, which introduced the levy on electricity from solar radiation, this in effect changed
the amount of support provided to operators of PVPP.”).
170
Tr. (Day 4) 680:9-16 ("I think there is this lingering question of is the Solar Levy really any different
from a FIT reduction? And, you know, it depends on who you ask; right? We accept that it has similar
limits on a similar impact on the cash flows for the investor, except, of course, you know, a FIT
74
272. The Respondent contends that the Tribunal must apply the doctrine of police powers in
its analysis, to which the Claimants object. Again, the Tribunal can dispense with
resolving this issue.171
As already mentioned, the Tribunal is of the view that the
regulatory framework contains no stabilization commitment of the content put forward
by the Claimants. To reach this conclusion, the Tribunal need not to examine the
status, role or applicability of the doctrine of police powers.
273. Having addressed the Respondent’s reliance on the doctrine of police powers to
excuse it from liability, the Tribunal will now examine the Claimants’ submission that,
by abrogating the Tax Incentives and introducing the Solar Levy, the Respondent
violated Article 2(1) (fair and equitable treatment), Article 4(1) (full protection and
security) and Article 7(2) (umbrella clause) of the Treaty.
D. FAIR AND EQUITABLE TREATMENT
1. The Claimants’ Position
274. According to the Claimants, Article 2(1) of the Treaty requires a State “[n]ot to
deliberately cause damage to foreign investors; and [t]o protect their legitimate
expectations relied on when investing”.172
The Respondent has breached both these
aspects of Article 2(1) of the Treaty.
a. The Respondent attracted and then deliberately harmed solar PV
investors
275. The Claimants submit that the Support Scheme was created to attract foreign investors
to the Czech Republic for the purpose of complying with the Republic’s obligations
under EU law. Once foreign investors had been attracted, the Respondent changed
course and abrogated the Support Scheme. Doing so, it specifically targeted solar PV
investors and required them to pay for a tariff deficit which was caused by the
reduction would apply permanently and reduce your cash flow, but here the Solar Levy applied for
three years at the 26% level.").
171
The Claimants appear to agree. Tr. (Day 1) 35:4-20 (“Respondent contends that the introduction of
the Solar Levy was a reasonable exercise of their regulatory power […] This defense is not only
without merit, it's also legally irrelevant. We do not dispute that the State has the power to regulate for
the good of its people. That's the purpose of a State but that power finds its limits in international law
obligations (emphasis supplied).”).
172
SoC, §185.
75
government’s own prior actions. The Respondent’s conduct was neither fair nor
equitable.
b. The Claimants’ legitimate expectations
276. It is the Claimants’ submission that they legitimately expected to benefit from the Tax
Incentives and the fixed FIT for at least 15 years. They relied on these expectations
when making their investments. By abrogating the Support Scheme, the Respondent
breached the Claimants’ legitimate expectations.
277. The Claimants contend that their legitimate expectations arose from the Support
Scheme itself. Besides the terms of Article 6(1)(b), the 5% brake rule provided
“additional stability and an additional guarantee for investors that there would be no
unexpected changes, and it strengthened the value of the tariff guarantee given in
Article 6(1)(b) [of Act 180]”.173
In addition, the Claimants also rely on a series of public
statements by senior government officials, explanatory notes to the relevant laws and
official communications, all of which, they submit, affirmed the existence of the
guarantees conveyed by the Support Scheme.
278. In answer to the Respondent, the Claimants specify that they do not claim that every
statutory provision gives rise to legitimate expectations. Rather, their position is that
the very specific, long-term guarantees contained in the Support Scheme did create
expectations. They also clarify that they do not rely on political statements as the
primary source of their legitimate expectations. Yet, these statements confirm the
“stability guarantee” contained in the Support Scheme.
c. Specific guarantees or representations made to the Claimants
279. The Claimants submit that the Support Scheme is a “very specific targeted legislation”.
In order to receive the benefits of the Support Scheme, producers were required to
follow a number of steps including obtaining construction permits, signing construction
contracts, fulfilling technical requirements, and entering into contracts with grid
operators. Addressed only to investors who built a solar plant authorized and licensed
by the Respondent and connected to the grid within a certain year, the Support
Scheme is “the institutional equivalent of what [a] contractual stabilization clause would
173
Tr. (Day 4) 630:18-21.
76
be, just in terms of modern regulation, where the actual contracts closing is delegated
to private operators, in this case, the transmission system operators”.174
280. According to the Claimants, through (i) the investors’ right to choose between feed-in
tariffs and green bonus, (ii) “[o]fficial price setting by the ERO for specific plants”, (iii)
grid operators’ statutory duty to enter into contracts with qualifying RES producers, and
(iv) ERO licenses, the “Support Scheme” created a “system of reliance”, on which the
Claimants precisely relied when making their investment.
281. The Claimants also point out that the 2003 Explanatory Report issued by the
Respondent “confirms the already unambiguous wording of the Support Scheme and
underscores “that the profit” for the energy sold to the grid operators “shall be
guaranteed for 15 years””.175
d. The Solar Levy effectively ended the feed-in tariffs
282. The Claimants disagree with the Respondent’s submission that the feed-in tariffs
remained intact in spite of the Solar Levy. Since grid operators are under an obligation
to deduct the Levy from the payments due to the solar PV producers, the Claimants
effectively receive 26% less than the amount to which they are entitled under Act 180.
Through the Solar Levy, so say the Claimants, the Respondent has “blatantly tried to
mask a de facto reduction of the guaranteed feed-in tariffs”.176
e. Guarantees in respect of taxation
283. The Claimants are in agreement that the tax exemptions already existed at the time
when Act 180 entered into force. However, relying on the 2003 Explanatory Report
issued by the Respondent, the Claimants submit that these incentives were made an
“integral part” of the Support Scheme. The Claimants therefore legitimately expected
“that an exemption that is part of the Support Scheme is not suddenly amended to
reduce the impact of long term price guarantees contained in the Support Scheme and
thereby circumventing the actual benefits received under the Support Scheme”.177
174
Tr. (Day 1) 30:2-7.
175
Reply, §31.
176
SoC, §214.
177
Reply, §66.
77
284. The Claimants also rebut the Respondent’s argument that the Claimants could not rely
on the prospective five year income tax exemption contained in Act 586/1992 Coll. on
Income Tax (“Act 586”), because the Act was amended several times. They reply that
only five amendments abolished tax exemptions and that none of these five
amendments retroactively affected tax exemptions that were granted for a set period,
save for the one presently in dispute. They maintain, therefore, that the abolition of the
Tax Incentives was unprecedented.
f. Expectation to receive a 15-year payback
285. For the Claimants, the 15-year payback is only one of three independent guarantees
which ERO was to respect when setting the tariff for the following year. The other two
were the set tariff and the 5% brake rule. ERO must comply with all three guarantees
cumulatively, not, as the Respondent suggests, with only one to the detriment of the
others. Thus, the Respondent’s argument that the 15-year payback period was the
“operative basis” of the Support Scheme is “smoke and mirrors”. This term is not found
in the law itself and is “irreconcilable with the plain wording of the Support Scheme, the
explicit intent of the legislator and the representations made by the Czech Republic at
the time”.178
In fact, in its own documents, the Respondent made no mention of the 15year
pay-back guarantee as the “operative basis” of the Support Scheme.
286. The Claimants further challenge the Respondent’s position as incompatible with the
purpose of Act 180, which was meant to attract private investment into renewables,
thereby helping the Respondent meet its indicative EU targets for renewable energy.
According to the Claimants, “[n]o reasonable investor would have invested
considerable sums of capital in a foreign country if they were only guaranteed a return
of their investment within 15 years and nothing more”.179
g. “Windfall profits”
287. In reply to the Respondent’s argument that the drop in investment costs led to “windfall
profits” for investors which could legitimately be curbed in order to alleviate budgetary
constraints, the Claimants argue that there is no evidence that the Claimants benefited
from that alleged drop. At least for the Claimants, the reduction of the feed-in tariff by
178
Reply, §6.
179
Reply, §36.
78
5% in 2010 meant that they only hypothetically benefited from a reduction in
investment costs of around %.
288. In any event, the Claimants deny that they received any “windfall profits”. Their preamendment
rate of return was between and % compared to the 7% allegedly
promised by ERO. For the Claimants, “[t]his is not a case where the gold price
escalated two or three times over the old price, increased six-fold within a couple of
years only”.180
Furthermore, the level of the present rate of return is “currently
irrelevant”. After all, one cannot know what the situation will be in five or ten years –
the plants may break down and there may be other technical issues.
289. The Claimants also dispute that they profited from the alleged price decrease in solar
panels. The engineering, purchasing and construction contracts concluded between
and for the construction of the three PV plants specified the costs
for the purchase of solar panels. The contracts show that the overall investment costs
between 2009 and 2010 were reduced by only % compared to the alleged %
price drop for solar panels.
290. For the Claimants, the Respondent has failed to explain the link between the alleged
windfall profits and the Solar Levy. In fact, the Explanatory Report to Act 402/2010
briefly mentioned a drop in investment prices, but did not correlate Solar Levy and
“windfall profits”. The real reason for the introduction of the Solar Levy, so say the
Claimants, was that the Respondent considered solar power plants to be inefficient in
relation to their cost.
h. Decisions of the Czech courts
291. The Claimants object to the Respondent’s reliance on the decisions of its local courts.
They regard these decisions as irrelevant for the issues of international law which have
to be decided here. The Claimants also point out that these decisions were rendered
after the Respondent abrogated its guarantees. Therefore, any interpretation of the
Support Scheme by the domestic courts “[cannot] be reliably used to test Claimants’ ex
ante legitimate expectations”.181
180
Tr. (Day 4) 642:18-20.
181
Reply, §44.
79
i. Tariff reduction in the lease
292. The Claimants submit that the Respondent’s reliance on the tariff reduction provision in
the lease agreement (see below §330) is misguided. That provision was
meant to address decreases in tariffs resulting from a failure to complete the
plant before the end of the calendar year. It is, therefore, inapposite to refer to it in the
present dispute.
j. The Claimants’ due diligence
293. The Claimants oppose the Respondent’s submission that they could have no legitimate
expectations because they failed to conduct a proper due diligence (see below §§331
et. seq.). In any event, they contend that the Respondent has not explained what the
Claimants ought to have discovered as part of their due diligence. In addition, the
Claimants point out that “none of the changes to the Support Scheme were
foreseeable”.
k. Opinion of Ueltzhöffer Balada
294. Prior to investing in the Czech Republic, the Claimants secured a legal opinion signed
by Mr. Andreas Ueltzhöffer, a partner at the Czech law firm Ueltzhöffer Balada. On the
letterhead of this firm, Mr. Ueltzhöffer confirmed to the Claimants that the principle of
“Bestandsschutz” that prohibits retroactive changes in the law exists in Czech law. It
was, inter alia, on the basis of this opinion that the Claimants eventually invested in the
Czech Republic.
295. In answer to the Respondent’s argument that the Claimants should not have relied on
the opinion of Mr. Ueltzhöffer because he is a German lawyer, the Claimants observe
that the advice was given by the Czech law firm Ueltzhöffer Balada (now Ueltzhöffer
Klett Jakubec & Partneři), which was authorized to advise on matters of Czech law.
They note that, in a subsequent letter of 18 August 2015, Ueltzhöffer Klett Jakubec &
Partneři confirmed that Mr. Jan Balada, the second partner of the law firm at the time,
was a fully qualified legal professional under Czech law and therefore entitled to advise
on matters of Czech law.
296. The Claimants add that, although the opinion was only signed by Mr. Ueltzhöffer, it
was given on the official letterhead of the law firm in the name of the firm,
Mr. Ueltzhöffer having signed because the opinion was issued in German.
80
l. State aid
297. The Claimants consider that the legitimacy of their expectations cannot be questioned
on the ground that the Support Scheme constitutes State aid. First, they contest that
the Scheme can be characterized as State aid as it was initially financed by the
ultimate consumers of electricity only. Second, they point out that, in its Decision, the
Commission held that the Support Scheme was not incompatible with EU law on State
aid.
298. In any event, the Claimants submit that what matters to assess their legitimate
expectations is their knowledge when making the investment. At that time, there was
no decision of the Commission declaring a feed-in tariff scheme to be incompatible
State aid. In fact, while examining draft legislation which was later adopted as Act 180,
the Commission itself concluded that the act would not constitute State aid. Further, in
its 2003 Explanatory Report, the Czech Republic also considered that the Support
Scheme was compatible with EU law.
299. For the Claimants, the Commission’s submission that this Tribunal is bound by the
Commission’s decision on legitimate expectations is “evidently nonsense”. The
Commission does not have jurisdiction to decide this dispute.
m. The legislative changes were not foreseeable
300. For the Claimants, the contested measures were not foreseeable. Four small German
investors cannot be expected to foresee retroactive legislative changes which even the
government had not contemplated. No information was publicly available on the
retroactive changes at the time of the investments. Only one document dated
November 2010 envisaged such a change, but at that time the Claimants had already
made their investments. The only change discussed at the time of the Claimants’
investment was the removal of the 5% brake rule, which is why the Claimants took
efforts to get their plants online in 2010.
301. The Claimants further submit that Mr. admitted that ERO itself had no proper
information available. It received details about the rise in capacity only in 2010. As the
regulator itself did not have the relevant information, it was unreasonable to expect an
investor to do so. The 2010 ERO Report only summarized ERO’s activities in 2009 and
81
explained ERO’s efforts in abolishing the 5% brake rule. The retroactive changes were
not addressed.
302. It is wrong, so say the Claimants, for the Respondent to draw a comparison with the
changes introduced in the German solar PV framework. While it was true that the
amendment to the German Renewable Energy Act was passed in August 2010 and
entered into force retroactively as of July 2010, such amendment served to implement
a decision of the Federal Supreme Court of December 2009. Thus, since December
2009, operators in the German PV sector knew that changes were likely. In any event,
the Claimants emphasize that the German framework is different and cannot be
compared with that of the Czech Republic.
303. Finally, the Claimants assert that both ERO and the government should have taken
action to inform investors of possible retroactive changes. Yet, no action was taken.
n. The Decision
304. The Claimants acknowledge that, in its Decision, the Commission has commented on
possible breaches of the FET standard of the Treaty. For the Claimants, these views
are irrelevant as “[t]he EU Commission has no jurisdiction to assess legitimate
expectations of investors under the German-Czech BIT”.182
2. The Respondent’s Position
305. The Respondent essentially submits that the Claimants have not established (i) that
the Czech Republic made “specific commitments” that its laws would not change, (ii)
that the Claimants reasonably relied on such alleged specific commitments when
making their investment, and (iii) that the Czech Republic abrogated these alleged
commitments when it introduced the challenged measures. As a result, the FET claims
should be dismissed.
a. The Respondent did not deliberately attract PV investors
306. The Czech Republic denies the Claimants’ suggestion that it deliberately attracted PV
investors in order to fulfill its obligations vis-à-vis the EU. Solar power is by far the most
182
Claimants’ Comments on the Commission Decision, §1.
82
expensive source of renewable energy. Therefore, the legislature could never have
anticipated that Act 180 would prompt any significant growth in the production of solar
energy. The Explanatory Report to Act 402/2010 emphasized that the environmental
conditions in the Czech Republic were unsuitable for solar generation and instead
envisioned growth in other RES like wind mills. Further and in any event, the 8% target
had already been superseded by a new target for 2020, and “it is hardly plausible that
the Czech Republic would have intentionally committed electricity consumers and
taxpayers to pay enormous subsidies for a period as long as 20 years simply to
achieve a non-binding target”.183
307. The Respondent submits that Act 180 was intended to provide cost-efficient subsidies
for investment in renewable energy sources. Thus, the Claimants’ “core” premise,
i.e. that the Czech Republic deliberately attracted “large investments” into the PV
sector and then “shortchanged” the investors once this goal was attained, is not
correct. The Czech Republic never sought to attract foreign investors to investment in
solar RES production in the first place.
308. In response to the Claimants’ argument that the Czech Republic required solar
investors to pay for a tariff deficit which was caused by the government’s own actions,
the Respondent submits that austerity measures designed to protect the State budget
– in and of themselves – cannot constitute a violation of the FET standard. Moreover,
the Claimants’ argument effectively turns that standard into a mechanism by which
investors can defeat any tax assessment, and that cannot be correct. States enjoy the
sovereign right to change domestic laws, so long as such changes are not manifestly
inconsistent, non-transparent, unreasonable, or discriminatory. The fact that, in
retrospect, some aspects of the regulation proved difficult to manage does not mean
that the Czech Republic acted wrongly.
b. The Claimants’ expectations
309. At the outset, the Respondent submits that, EU law being part of the applicable law
under the Treaty, the legitimate expectations standard under the Treaty must be
interpreted in line with that standard under EU law. If the Treaty were to provide for a
different standard than that known in EU law, then the latter should prevail.
183
Rej., §5(f).
83
310. On this basis, the Respondent submits that the measures complained of did not breach
the Treaty because they did not violate a stabilization commitment owed to the
Claimants or legitimate expectations held by them, and because the measures were
reasonably tailored to achieve legitimate State objectives. For the Respondent,
“[i]nvestment treaties [are not intended] to protect investors from what is properly
business risk; to serve as the functional substitute of a stabilization clause or to fetter
the power of [a] State to adopt rational and proportional measures in the public
interest”.184
311. To give rise to legitimate expectations, so says the Respondent, statements must be
“clear”, “definitive” and “unambiguous”. This is not so here. The Solar Levy did not
change the feed-in tariffs and, therefore, the question of stabilization does not arise. As
for the Tax Incentives, “the 2003 Explanatory Report simply cannot be read as a
promise to investors to maintain the [tax exemption], and it makes no mention at all of
depreciation”.185
In addition, neither the Income Tax Act nor the 2003 Explanatory
Report were “specific” to the Claimants.
312. Moreover, the Respondent points out that Section 6(1) of Act 180 begins with the
words “[t]he Office” which is a reference to ERO. It then specifies the tariff-setting
framework which ERO is bound to apply. Contrary to the Claimants’ assertions,
Section 6 contains no commitment that such section will not be amended. Nor does it
include a stabilization guarantee guarding against other changes in law. The contested
measures were adopted through primary legislation and did not involve an amendment
of Section 6 of Act 180.
184
Rej., §9.
185
Rej., §437.
84
c. Specific guarantees or representations made to the Claimants
313. The Respondent denies that it provided specific guarantees or representations to the
Claimants. More specifically, it refutes the Claimants’ argumentation as follows:
(i) Choice of two forms of subsidies
314. According to the Respondent, it is difficult to discern anything “specific” about the right
of eligible RES investors to choose between tariffs and green bonus, a choice which
was open to all investors.
(ii) ERO price decisions
315. Contrary to the Claimants’ submissions, the Respondent is of the view that the ERO
price decisions were not issued “for specific plants”, but merely for different categories
of RES plants, depending on the date of commissioning, the method of production of
electricity, and the size of the plant.
(iii) Contracts with grid operators
316. For the same reasons, argues the Czech Republic, the contracts with the grid
operators are also unhelpful to the Claimants’ case. These contracts do not relate to
the feed-in tariffs at all. They contemplate connections to the grid and the producer’s
entitlement to supply electricity. Moreover, the counterparty to the contract was one of
the three regional grid operating companies, not the State.
(iv) ERO licenses
317. Similarly, continues the Respondent, the ERO licenses issued to the producers do not
assist the Claimants either. The licenses only list details, such as the license holder’s
address, the name of the responsible representative, and the installed capacity of the
plant. They do not confer on license holders any right other than the right to generate
electricity. They do not mention the entitlement to the feed-in tariffs or to other
elements of the Support Scheme. Their general format is universal, not specific to any
particular license holder.
85
(v) Other documents
318. Finally, according to the Respondent, most of the other documents relied upon by the
Claimants are not contemporaneous with the Claimants’ investment. More importantly,
the Claimants do not allege that they reviewed any of them prior to making their
investment. In any event, none of these documents contain specific assurances or
“guarantees” given by the Czech Republic.
d. The Solar Levy did not end the feed-in tariffs
319. The Respondent agrees that the Solar Levy impacts the cash flows of PV producers
such as the Claimants. However, it does not agree that the Solar Levy ended the feedin
tariffs altogether. First, the Solar Levy applied at the 26% level for three years only,
when a tariff reduction or suppression would apply permanently. Second, there is a
difference from the perspective of the State budget, in the sense that, the general
budget benefits from the revenues from the Solar Levy, but not from a reduction in
tariffs. Third, there is also a difference from the perspective of the electricity
consumers, as a cut in tariffs would reduce the burden on electricity consumers, which
was not directly the case with the Solar Levy.
e. Guarantees in respect of taxation
320. Contrary to Claimants’ submissions, the Respondent submits that neither Act 180 nor
its implementing regulations specified any limitations on the taxation of RES producers.
The Tax Incentives were part of the Income Tax Act for more than a decade before Act
180 entered into force. Nothing in the Czech legislation excludes or limits the
legislator’s ability to amend the Income Tax Act. In reality, it is amended frequently.
321. The Czech Republic also observes that there is nothing “unprecedented” about
withdrawing tax exemptions. For instance, Act No. 338/1992 Coll., on Real Estate Tax
provided a 15 year property tax exemption for owners of new dwellings who used them
for permanent residence. That exemption, which existed since 1993, was subsequently
withdrawn without providing any exceptions for existing homeowners.
322. The Respondent further draws attention to the fact that the only basis for the
Claimants’ position that they received guarantees in respect of taxation is (i) a single
sentence in the 2003 Explanatory Report and (ii) the words “‘tax holiday’ - 1 + 5 years”
in an October 2006 presentation by an ERO official at a workshop dedicated to the
86
promotion of biogas. For the Respondent, neither of these documents is equivalent to
a guarantee restricting the fiscal powers of the Czech legislature. Further and in any
event, both the 2003 Explanatory Report and the ERO presentation were publicly
available, and the Claimants have not alleged that they reviewed, let alone relied on
these documents prior to investing in the Czech Republic.
f. Expectation to receive a simple return on investment
323. The Respondent submits that the 15-year payback period was the operative basis of
the Support Scheme. In its submission, two benchmarks must be considered in this
connection: (i) an adequate return over the useful life of the investment (also referred
to as “reasonable profit”) and (ii) a simple return of capital expenditure within 15 years
(also referred to as “payback”). Both benchmarks were met under the Support Scheme
and continue to be met despite the Solar Levy and the changes to the income tax
regime. In fact, the Claimants’ plants continue to be profitable despite the adoption of
the impugned measures.
324. The Respondent challenges the Claimants’ position that nothing in the Support
Scheme limits the returns of PV producers. It points to the Technical Regulation which
sets the tariff as a function of costs to enable an adequate return, defined as a function
of the WACC. For the Respondent, “any sophisticated investor who did adequate legal
due diligence would have seen those references to the WACC and to the reasonable
rate of return, and would not have assumed that they had no limit on the returns”.186
325. According to the Respondent, the Claimants’ only legitimate expectation could have
been to receive a 15-year return on their investment, an expectation which was met.
The Solar Levy was set at 26% to maintain the 7% rate of return over the 20-year
useful life of the plant in accordance with the criteria specified in the Technical
Regulation. With the Solar Levy, it was estimated that the payback would be achieved
in approximately 11 years, considerably less than the 15-year period mentioned in
Section 6 of Act 180.
326. In this context, the Respondent argues that Section 6(1)(b)(1) of Act 180 directed ERO
to set the tariff “so that […] there is attained […] a fifteen year payback period on
186
Tr. (Day 1) 63:16-20.
87
capital expenditures […]”187
, which was the key to setting the appropriate tariff. The
highest courts in the Czech Republic too found that under Act 180, the Claimants could
legitimately expect a “simple return” of investment, i.e., a full return of capital, without
profit. In fact, a reference to a guarantee of “reasonable profit” in addition to the 15year
return of capital contained in an early version of the draft Act was not taken over
in the final version.
g. “Windfall profits”
327. The Respondent alleges that it introduced the Solar Levy on revenues of solar plants
commissioned in 2009 and 2010 to partially offset the State’s direct contribution to the
costs of renewable electricity subsidies. The Solar Levy curtailed only the producers’
windfall profits, leaving intact the guarantee of return contemplated in Act 180 and
related regulations. The Tax Incentives too were revoked as part of a broader set of
austerity measures, especially in light of the high profits earned by producers. In any
event, the Respondent was under no obligation to maintain the existing tax regime.
328. The Respondent disputes that the Solar Levy or the revocation of the Tax Incentives
breached any legislative promise or guarantee. To the contrary, these measures
“struck an appropriate balance between protecting the long-term profitability of […]
investments and the interests of other investors, consumers and the public at large”.188
They were carefully calibrated to preserve the original payment guarantees, as well as
to provide a reasonable profit level over the 20-year life of the PV plants. Indeed, the
tariff rate remained unaffected. Contrary to the Claimants’ arguments, the challenged
measures merely did “align profitability closer to the regime’s original target and the
level of return deemed acceptable for other regulated activities”.189
h. Decisions of the Czech courts
329. The Respondent submits that most of the Claimants’ submissions in respect of
legitimate expectations, legal stability, non-retroactivity, and the alleged lack of
justification of the challenged measures were exhaustively heard – and rejected – by
the Constitutional Court and the Supreme Administrative Court. While conclusions
187
SoD, §§29-31.
188
Rej., §5(k).
189
Rej., §5(j).
88
under domestic law are not determinative for the Tribunal, the rationale of the Czech
Courts is nonetheless relevant.
i. Tariff reduction in the lease
330. The Respondent argues that the operator of the plant, , and
the local municipality agreed on a risk-sharing provision applying to a scenario in which
feed-in tariffs would fall by over % during the term of the lease.190
For the Czech
Republic, the existence of such a provision shows that the Claimants knew that the
feed-in tariffs could be reduced at any time.
j. The Claimants’ due diligence
331. The Respondent stresses that the Claimants had no prior experience in the solar PV
sector. Had they acquired a proper understanding of the legal framework or given due
regard to the circumstances at the time, they would not have formed the expectation
that they would continue to benefit from excessive profits without any regulation limiting
these profits.
332. The due diligence undertaken by the Claimants before investing in the Czech PV
sector was, so says the Respondent, “woefully inadequate or non-existent”. The
decision to invest was based solely on: “(1) marketing materials provided by, and
discussions with, a representative of a Spanish company that had no prior experience
in the Czech solar market and little knowledge of the country’s legal environment; (2) a
one-and-a-half page legal opinion on Czech law signed by a German lawyer; and (3)
Claimants’ overall ‘good experience with the Czech Republic’”.191
333. According to the Czech Republic, had the Claimants carried out a proper due diligence
exercise, they would have understood that the legislative and regulatory framework
gave no guarantee of profitability, apart from seeking to ensure a 15-year return of
190
Exh. R-241, Lease agreement between and the city of , 5 March
2010, Article IV(7) (“If at any time during the term of this lease [i.e., approx. 20 years] the feed-in tariff
applicable to the electricity produced in the PV plant shall be decreased by more than %, as
compared to the feed-in tariff in effect when this lease had been concluded, i.e. the feed-in tariff
announced in the ERO Price Decision for the year 2009, the Lessee shall be entitled, subject to
delivering a prior written notice to the Lessor, to demand a pro rata reduction of the amount of the
agreed rent for the future, or to rescind this agreement.”).
191
Rej., §169.
89
capital and a reasonable profit for plants that met the parameters set. In particular, no
guarantee was given that solar investments would not be subject to changes in
taxation. Through a proper due diligence, the Claimants would have also discovered
that the Support Scheme was out of balance with its underlying objectives, and that
significant changes were thus likely.
334. The Respondent additionally notes that the Claimants’ own Czech counsel (i)
acknowledged the unexpected fall in the price of solar panels, (ii) noted that the feedin-tariffs
would be modified to adapt to economic conditions; and (iii) warned about the
possibility of further changes in the law. What is more, the Claimants themselves were
skeptical about the advice they received from their lawyers. For instance, even though
the Claimants were told that the feed-in tariffs would remain in place for 20 years, they
used a shorter period of 15 years in their business forecasts.
k. Opinion of Ueltzhöffer Balada
335. The Respondent asserts that the one and a half page opinion prepared by
Mr. Ueltzhöffer does not suggest that the Claimants’ investment would be free from
regulation. The opinion says nothing of substance about the ‘Bestandsschutz’ or about
its potential application to the measures at issue. Further, the Claimants could derive
no expectation of “legislative stasis” from a statement about the Czech legal system by
a German lawyer not qualified to give advice on Czech law. In fact, Mr. Ueltzhöffer was
not even authorized to provide legal advice on matters of Czech law and could not be
presumed to meet the conditions required to qualify as a Czech lawyer.
336. The letter from Ueltzhöffer, Klett, Jakubec & Partneři (the successor firm to Ueltzhöffer
Balada) of August 2015 does not assist the Claimants. It has no evidentiary value as
its authors have not presented themselves as experts or witnesses. Furthermore,
Mr. Ueltzhöffer claims that his earlier advice was validly given because it was on the
letterhead of Ueltzhöffer Balada, a “general partnership”, and must be regarded as
legal advice provided by the firm. Yet, Ueltzhöffer Balada is an “association
(sdružení)”, which lacks legal personality. As such, it cannot itself practice law. Finally,
under Czech law, the presumption is that foreign registered lawyers like Mr. Ueltzhöffer
do not have the necessary experience and knowledge in matters of Czech law.
90
l. State aid incompatible with EU Law
337. The Respondent submits that the Decision makes clear that the Support Scheme
constitutes State aid within the meaning of Article 107(1) of the TFEU. The Claimants’
submissions to the contrary must thus be rejected.
338. The Czech Republic further submits that, in its Decision, the Commission found that
the Support Scheme constituted “unapproved” State aid since it was introduced in
2006. The Commission further found that under EU law, there was no “right” to State
aid and no legitimate expectation to receive unapproved State aid.
339. Under EU State aid law, so says the Respondent, the Czech Republic is prohibited
from paying subsidies to solar investors in excess of their cost of capital. Thus,
beneficiaries of State aid – like the Claimants – cannot “invoke any ‘legitimate
expectations’ to claim entitlement to more aid than currently granted”.192
The
Commission held that the level of State was admissible only because it took into
account the Solar Levy, the tax exemption and the reduced depreciation periods. Had
it not done so, the “approval of the State aid by the Commission likely would have been
impossible”.193
340. The Respondent emphasizes that the Claimants are sophisticated businessmen with
access to specialist legal advice. They cannot ignore EU State aid law. By investing in
a subsidized regime within the EU, the Claimants accepted the risk that this regime
may be contrary to EU law.
341. The Czech Republic also argues that the Claimants have not shown that they invested
on the basis of assurances that the Support Scheme would not be characterized as
incompatible State aid. The 2003 Explanatory Report dates from a time well before the
Claimants’ investment and was not addressed specifically to the Claimants. In any
event, there is no evidence that the Claimants even reviewed the Report before
investing in the Czech Republic. Further, the 2003 Explanatory Report was based on
the Czech Republic’s then understanding of State aid, which has since been
considerably clarified.
192
Respondent’s Comments on the Commission Decision, §31.
193
Respondent’s Comments on the Commission Decision, §19.
91
342. Moreover, according to the Respondent, the Claimants’ reliance on the Czech
Republic’s views in 2003 as to the characterization of the Support Scheme under State
aid law was misguided. State aid is an EU matter which the Czech Republic lacks the
competence to assess. The Czech legislators are not the “competent authority” and
their statements cannot give rise to legitimate expectations in this respect.
m. The legislative changes were foreseeable
343. The Respondent first submits that the impugned measures were not retroactive. It
notes that, in its Decision, the Commission expressed the same view.
344. The Claimants are said to have misunderstood the Respondent’s case on
foreseeability: “[t]he Czech Republic has never argued that the Solar Levy was
specifically foreseeable prior to middle of 2010”.194
Rather, the Respondent’s position
is that “investors who invest in a regime involving subsidized regulated tariffs must
understand that regulatory intervention is possible to recalibrate a regime if it is known
to be in imbalance with the purpose of the law”.195
345. According to the Respondent, an imbalance did exist: the reasonable rate of return set
out in the Technical Regulation was 7% per year over 20 years. Therefore, in respect
of any solar installation commissioned after 1 January 2008, ERO sought to achieve (i)
a reasonable rate of return equal to 7% per year over the 20-year life of the installation,
and (ii) a payback of justified investment costs in no more than 15 years. However, the
solar boom in combination with the 5% brake rule made it impossible for ERO to
comply with these benchmarks, resulting in faster payback and higher rate of return for
solar installations commissioned in 2009−2010. In these circumstances, the Claimants
should have foreseen changes in the regulatory regime.
n. The measures taken by the Czech Republic were reasonable
346. The Respondent finally insists that the measures at issue were taken after earlier
measures had failed to stop the ever-increasing investments in the solar sector. By late
2010, the Czech Republic was suffering from the effects of the global financial crisis
and had a serious budget deficit. Given the Republic’s efforts to put an end to the solar
194
Tr. (Day 4) 662:6-8.
195
Tr. (Day 4) 662:9-12.
92
boom as quickly as possible, at the time they invested, the Claimants “could not have
had any legitimate expectations of legislative stasis”.196
This is all the more true as
there was then a moratorium on new connections.
347. For the Respondent, a State measure is “reasonable” if it “bears a reasonable
relationship to some rational policy”. In assessing “reasonableness”, two elements
must be considered: “(1) the existence of a rational policy; and (2) the reasonableness
of the act of the state in relation to the policy”.197
Here, the measures taken by the
Czech Republic were reasonable.
348. The Respondent adds that, “[g]iven the significant ‘mismatch of production and
subsidies for PV’, it was entirely rational for the Czech Republic to craft measures
aimed at correcting the system and easing the burden on consumers. The solution
adopted by the Czech Republic was appropriately tailored because it (1) allowed
investors to continue making reasonable returns on their investments; (2) taxed only
the “windfall” profits (i.e., those profits that were above the reasonable level of return),
in an effort to mitigate the effects upon consumers, and the economy generally; (3)
leveled the playing field among all RES producers generally; and (4) leveled the
playing field among solar energy producers specifically (by targeting the amendments
at the groups that were receiving the largest windfalls)”.198
349. The Czech Republic also acted reasonably to rectify the good faith mistake in the
mechanism established to calibrate the RES subsidies, the mistake being the 5% limit
on FIT decreases for the solar plants commissioned in the following year. Moreover,
rather than applying a blanket measure to all RES producers or to all PV producers,
the Respondent carefully recalibrated the Support Scheme to target only those
producers who benefited from the “greatest imbalance” between subsidy and costs.
350. Finally, the Respondent submits that the “realignment” of the Support Scheme was
needed not only to respond to surging energy prices in circumstances of “economic
turmoil”, but was also needed to avoid overcompensation contrary to EU State aid law.
This can hardly be considered arbitrary or unreasonable. Indeed, the Treaty cannot be
196
Rej. §5(e).
197
Rej., §455.
198
Rej., §462 (internal citations removed).
93
interpreted as requiring the Czech Republic to maintain support to solar RES
production contrary to its international obligations under EU law.
o. The Decision
351. The Respondent finally submits that, in its Decision, the Commission considered
whether the impugned measures breached the FET standard under the Treaty. The
Commission concluded that there was no violation, a conclusion which this Tribunal
should reach as well.
3. The Commission’s Position
352. On its part, the Commission submits that the Czech Republic has not violated its
obligations under the Treaty. This is because under EU law, an investor cannot have
legitimate expectations with regards to future payments of State aid, save in
exceptional circumstances.
353. The Commission observes that producers of renewable energy had argued before the
Commission that it should not approve the contested measures on the basis of Article
108(3) TFEU, or else it would violate the general principle of legitimate expectations
under Union law and the Energy Charter Treaty, which forms part of Union law. These
arguments were rejected. If renewable energy producers like the Claimants so wished,
they could challenge the Decision before the Courts of the EU.
4. Analysis
354. Article 2(1) of the Treaty provides:
“Each Contracting State shall in every case accord investment fair and
equitable treatment.”
355. As mentioned earlier, the Claimants allege that by abrogating the Tax Incentives and
introducing the Solar Levy, the Respondent breached Article 2(1) of the Treaty.
356. The Tribunal notes that the claims under Article 2(1) of the Treaty are based on “the
protection of Claimants’ legitimate expectations” and on “the obligation not to
94
deliberately cause harm to Claimants’ investments”.199
The Claimants have not
precisely challenged the impugned measures as being arbitrary or discriminatory.
357. Before analyzing the Parties’ arguments ((c) and (d) below), the Tribunal considers it
useful to set out its understanding of the guarantees provided in Act 180 ((a) below)
and describe the circumstances in which the contested measures were introduced ((b)
below).
a. Act 180
358. As mentioned above, Act 180 was adopted in March 2005 to support the production of
electricity from all forms of RES sources through tariff and non-tariff measures.
359. Section 6(1) of Act 180 starts by providing that the ERO will set the “buy-out price” or
FIT,200
for solar RES one calendar year in advance in the following terms:
“Level of the prices for the electricity from the renewable sources and the
green bonuses
(1) The Authority defines the buy-out prices for the electricity from the
renewable sources (hereinafter referred to as the “buy-out prices”)
separately for individual types of the renewable sources and the green
bonuses always for the calendar year in advance in such way that […]”201
360. Subsection 6(1)(a) then stipulates that the buy-out prices or FIT must be set to allow
the Czech Republic to meet its indicative target of 8% of energy from renewable
sources out of the total electricity production by 2010:
“[…] conditions are created for the fulfilment of the indicative target of the
share of the generation of the electricity from the renewable sources in
the gross consumption of the electricity amounting to 8 % in the year
2010 […]”202
361. Subsection 6 (1)(b) then provides that the “buy-out price” or FIT for solar RES must be
such that the solar PV plants that fulfil technical and economic parameters can achieve
199
Reply, §216.
200
The Claimants understand the term “buy out price” to refer to the FIT. See SoC, §206 ("Pursuant
to Section 6(1) of Act 180, this guaranteed feed-in tariff (in the Act given the term “buy-out prices”)
[…]".).
201
Exh. C-031, Claimants’ Translation of Article 6 of Act 180.
202
Exh. C-031, Claimants’ Translation of Article 6 of Act 180.
95
a “return of investment” in 15 years. It identifies some of these parameters, and refers
to the implementing regulation for others:
“b) for the devices put into operation
1. after the date of the effect of this Act, the fifteen-year period of time of
return of investment is reached with support of the buy-out prices under
the condition of the fulfilment of the technical and economic parameters,
that are especially the costs for the installed unit of the output, the
efficiency of the use of the primary content of the energy in the
renewable source and the period of time of the use of the device and that
are defined in the implementing regulation […]”203
362. The “implementing regulation” mentioned in Section 6(1)(b) refers to the Technical
Regulation, which reads as follows:
“In order for the 15-year pay-back period to be assured through the
support by Purchasing Prices of electricity produced from renewable
sources, technical and economic parameters of an installation producing
electricity from renewable sources must be satisfied, where the producer
of electricity from renewable sources shall achieve, with the given level of
Purchasing Prices
a) an adequate return on invested capital during the total life of the
installation, such return to be determined by the weighted average cost
of capital (WACC), and
b) the net present value of the cash flows after tax over the total life of
the installation, using a discount rate equal to WACC, at least equal to
zero.” 204
363. In other words, the Technical Regulation provides that the FIT called here “Purchasing
Prices” must be set at a level that ensures a return of the investment in 15 years (a)
with an “adequate return” determined on the basis of WACC (b).
364. The methodology for calculating such adequate return is in turn contained in the ERO
Methodology available on the ERO website, which reads as follows:
“When determining purchasing prices [the ERO] proceeds on the basis of
the fundamental rules stipulated in [Act 180] and related implementing
legal regulations.
1.1 Methodology for deriving purchasing prices
203
Id., Section 6 (1)(b)(1).
204
Exh. R-013. Technical Regulation, Section 4(1).
96
Purchasing prices for electricity are set for individual types of RES […]
from data on reference projects. […]
1.2 Input data for projects – breakdown
[…] Useful life period and replacement period for parts of investments
The minimum prices are calculated for the period of the useful life of the
relevant investments. Such useful life period is stipulated for individual
kinds of RES in the ERO Decree No. 475/2009 Coll., which implements
certain provisions of [Act 180]
1.3 Assumptions concerning common economic parameters in the
calculations
[…] Discount rate – return on capital
This is a key assumption. The methodology used assumes an after-tax
WACC of 7%, used as the discount rate (the IRR of projects = 7%). […]
1.4 Methodology for calculation of green bonuses for individual
categories of RES […]
The ERO has thus far used a nominal discount rate of 7% for setting
purchasing prices.”
365. The Technical Regulation and the ERO Methodology thus established that the ERO
would set the FIT so as to allow producers to achieve a return on investment of 7%
p.a. Applying these texts and taking into account that Act 180 set the duration of the
payback period at 15 years, this meant that the level of the FIT to be set by the ERO
was such that it would ensure (a) a 15 year simple payback of capital expenses and (b)
a rate of return or profit of 7% per year for 15 years for those plants that could satisfy
the ERO’s technical and economic parameters.
366. Subsection 6(1)(b)(2) then provides that “the amount of revenue” will remain
unchanged for electricity from renewable sources “with the support of the buy-out
prices” for a period of 15 years from the date when the solar plant is put into operation
“as a minimum”:
“2. after the date of the effect of this Act, the amount of the revenues
stays unchanged for the unit of the electricity from the renewable sources
with the support of the buy-out prices for the period of time of 15 years
since the year, when the device was put into operation as minimum
amount whilst taking the price index of the industrial producers into
consideration; also the completion of the reconstruction of the
technological part of the existing device, the change of the fuel or the
97
completion of the modernisation, that increases the technical and
ecological level of the existing device, are also regarded as putting the
device into operation […]”205
367. In the Tribunal’s view, when subsection 6(1)(b) is read in its entirety, it is clear that the
language “amount of revenue stays unchanged” in section 6(1)(b)(2) was not an
absolute guarantee of revenues to solar PV plants. Subsection (b)(2) makes reference
to the “buy-out prices” mentioned in subsection (b)(1), expressly stating that they are to
“support” the “revenues” of solar PV plants. The buy-out prices themselves are set
following the criteria contained in the Technical Regulation and the ERO Methodology,
which state that the price will ensure a 15 year payback of capital expenses and a
return on investment of at least 7% per year over 15 years. Thus, there is no abstract
promise of “revenues” to investors. The revenues are tied to the buy-out prices, and
the buy-out prices are, in turn, tied to the guarantees of a 15 year payback of capital
expenses and a return on investment or profit of at least 7% per year over 15 years.
368. This conclusion derives from the text of Act 180 and its supporting framework. Indeed,
the only mention of the term “revenue” in Act 180 is in section 6(1)(b)(2), where it is
used in the context of the buy-out prices. Further, neither the Technical Regulation nor
the ERO Methodology provide a basis for calculating “the amount of revenues” of solar
PV plants, as something different from the buy-out prices. By contrast, they do provide
instructions on the calculation of the buy-out prices, specifying that these prices are to
be set at a level that guarantees a 15 year payback of capital expenses and a return
on investment of at least 7% per year over 15 years.
369. The Tribunal thus concludes that, through section 6(1) of Act 180 and its implementing
regulations, the Czech Republic promised that the buy-out price or FIT would be set at
a level ensuring a 15 year payback of capital expenses and a return on investment or
profit of at least 7% per year over 15 years for those solar PV plants that met the
relevant parameters.
370. The Constitutional Court reached a similar conclusion,206
and its decision was cited
with approval by the Supreme Administrative Court.207
205
Exh. C-031, Claimants’ Translation of Article 6 of Act 180, Section 6 (1)(b)(2).
206
Exh. R-084, Decision of the Constitutional Court, case no. Pl. ÚS 17/11, 15 May 2012, §68.
207
Exh. R-124, Decision of the Supreme Administrative Court, case No. 2 Afs 13/2013-28, 15 August
2013, pp. 6 et. seq.
98
371. The Commission also concluded that Act 180 did not guarantee a fixed FIT:
“Act No. 180/2005 Coll. did not guarantee a certain purchase price or
green premium, but only a simple payback of the investment over a
period of 15 years. The levy on photovoltaic producers has been
calculated so as to ensure such simple payback, but no more.”208
372. As a result, the Tribunal cannot agree with the Claimants’ and the Dissent’s suggestion
of a separate guarantee of an absolute FIT price level in the abstract, set
independently of the guarantees of a 15 year payback of capital expenses and an
annual return on investment of at least 7% over 15 years. As was discussed above, the
“revenues” of solar PV plants are dependent on the “buy-out” prices, which must be
fixed at a level that guarantees a 15 year payback of capital expenses and a 7% profit
over 15 years. Thus, so long as these two guarantees continue to be maintained,
investors obtain the level of revenue promised by the Czech Republic and there cannot
be a breach of section 6(1) of Act 180.
373. Moreover, contrary to the suggestion of the Claimants and the Dissent, these
guarantees were sufficient to attract investment in solar RES production. ,
on whose advice the Claimants invested in the Czech Republic, found the guarantees
of the Czech Republic “sufficiently attractive”,209
namely sufficient to attract investors’
interest.210
Similarly, while pursuing its own analysis, the Commission also deemed the
rates of return guaranteed in Act 180 reasonable and in line with the renewable
support schemes of other EU member States.211
374. It follows from this review that neither the legislation nor the implementing framework
capped the returns of solar RES producers at 7%. If investors were able to invest and
operate efficiently, their returns could well be over 7% per year. The Claimants’ own
returns were in excess of 7% per year, both before and after the contested measures.
208
Exh. R-277, §135.
209
WS I, §12 ("In conjunction with the solar radiation in the Czech Republic and the then
existing investment costs per megawatt peak for PV plants, the guaranteed feed in tariffs resulted in a
rate of return which was sufficiently attractive.").
210
Tr. (Day 1) 230:19-20.
211
Commission Decision, §99.
99
b. Context of introduction of Solar Levy and withdrawal of income tax
incentives
375. As was stated earlier, the Respondent adopted Act 180 in March 2005 to support the
production of electricity from all RES sources including windmills, biomass plants and
solar energy.212
Solar electricity generation was not foreseen to contribute a significant
part of RES generation: it was predicted that solar RES production would account for
15 GWh of electricity generation in 2010, as compared to 2,200 GWh from power
plants using biomass.213
Further, the solar sector was generally expected to consist of
“small producers” with a “very low economic rate of return.”214
This is not surprising, as
the geographic location and climatic conditions of the Czech Republic make solar
electricity generation there relatively inefficient.215
Finally, while prices were expected
to rise because of the subsidies given to RES producers through Act 180, the Czech
Republic expected this increase to be “manageable”, in the range of 1% per year.216
376. In the years following the adoption of Act 180 until about September 2008, there was
no significant increase in solar electricity generation.217
The vast majority of electricity
from RES was generated by hydro and biomass power plants, with wind power
growing in importance towards the end of that period.218
377. As was seen earlier, the parameters for calculating the FIT for solar RES producers
were set out in the Technical Regulation219
and included the cost of solar panels, which
212
Exh. R-147, 2003 Bill and Explanatory Report (Respondent’s translation), p. 14.
213
Exh. R-147, 2003 Bill and Explanatory Report (Respondent’s translation), p. 14. See also Exh. R-
148, M. Bursík, “Renewable resources: the new law is an opportunity for modern municipalities”
(moderniobec.cz), 1 June 2005, which presents some similar figures, and Exh. C-099, Report on
meeting the indicative target for the production of electricity from renewable sources in 2004,
September 2005, p.21, §6 (“Having regard to the availability of usable energy potential, the key to
meeting the indicative target is to build installed capacities in terms of biomass (about 150 MW), small
hydropower plants (about 100 MW) wind power (about 600 MW) and biogas. As for the other
renewable sources, either their potential is already being fully exploited or their use is impracticable in
the timeframe in question”).
214
Exh. R-147, 2003 Bill and Explanatory Report (Respondent’s translation), p.19.
215
Exh. R-151, Juraj Beták and others, “Solar resource and photovoltaic electricity potential in EUMENA
region,” 2012, Figures 1 and 2 and Tables I and II.
216
Exh. R-147, 2003 Bill and Explanatory Report (Respondent’s translation), p.24.
217
Exh. R-162, 2007 Report on the Achievement of the Indicative Target for Renewable Electricity
Production, September 2008, §7.
218
WS, §10.
219
Exh. R-013, Technical Regulation.
100
was the largest capital expense associated with solar power projects.220
By late 2008,
the cost of solar panels had decreased by approximately 40% from the levels in
2005.221
As a result, solar RES producers could set up generation facilities at a
considerably lower cost, which is depicted in a study of the Czech Renewable Energy
Agency:222
378. The Agency observed that the reduction in the cost of solar panels could go down to
50% of the levels seen before 2008. It also noted that the fall in prices should lead to a
decline of the FIT by 30% for large installations and 10% for small installations.
379. Pursuant to Section 6(3) of Act 180 and Section 4 of the Technical Regulation, the FIT
was determined once a year – for plants to be commissioned in the year ahead – by
reference to the producers’ costs. As the principal capital expense for solar power
projects was the price of the solar panels, the reduction in solar panel prices should
220
Solar panels take up to 74% of the capital outlays required to construct a solar generation facility.
See Jones ER 1, §5.15, relying on Annex 3, Solar panel price data from PVExchange.com.
221
Jones ER 1, Figure 7, Annex 3. The Claimants dispute this position, contending that the
Respondent’s submission is “completely devoid of any substantiation” and pointing out that the
Respondent has not explained whether and to what extent investors benefited from the decrease in
prices of solar panels (Reply, §§71-72). The Tribunal does not find this to be the case.
222
Exh. R-178, Photovoltaic power plants – installed capacity in 2009, preliminary estimate, Czech
RE Agency, September 2009, p.4.
101
have led to a lower FIT for the solar producers in the range identified by the Czech
Renewable Energy Agency.
380. However, the Czech Republic could not reduce FIT prices because of the 5% brake
rule, which required that the FIT for any new plant put into operation would not be
lower than 95% of the FIT payable to plants put into operation in the previous year.
Accordingly, the ERO was unable to reduce the FIT by more than 5% for plants
commissioned in 2009 and further no more than 5% for those commissioned in 2010.
As a result, the FIT remained high, even though producers’ costs had dropped by over
30% since 2008.
381. The resulting imbalance between the cost of setting up solar generation facilities and
the profits generated from such facilities meant that solar RES producers who invested
in the Czech Republic in 2009 and 2010 stood to benefit from a level of profitability that
exceeded the rate of return that was originally contemplated by the Support Scheme.
As a result, solar producers rushed in to set up solar plants in the Czech Republic,
which is described as a “solar boom”. The Claimants made their investment in this
period.
382. The resulting solar energy production vastly exceeded original expectations; it was 40
times higher than envisioned when enacting Act 180.223
Instead of the expected
15 GWh production,224
the actual production in 2010 was 616 GWh and the actual
production in 2011 was 2,182 GWh, more than three and a half times higher than the
2010 figure.225
Similarly, while in September 2008 installed capacity was predicted to
be 10 MW by the end of 2010, the real figure turned out to be almost 200 times higher,
at 1,960 MW.
383. The “solar boom” had several deleterious effects, which were noted by Mr. ,
the then chairman of the ERO:
“First, a geometric growth in the highest-priced RES electricity generation
would greatly increase the price of RES support paid by consumers,
leading to unsustainably high electricity prices for households and
223
Jones ER 1, §6.16, Table 4.
224
Exh. R-162, §7, The 2007 Report on the Achievement of the Indicative Target for Renewable
Electricity Production, September 2008, estimated an annual production of 6GWh.
225
Jones ER 1, Table 4.
102
businesses, which were already suffering from the effects of the financial
crisis. Second, the situation would result in significant and unjustified
profit increase of solar investors vis-à-vis other RES producers and other
price-regulated entities. Third, a solar boom would threaten the stability
of the grid, given the unpredictable and volatile nature of solar electricity
production.”226
384. In these circumstances, the Czech Republic took several measures to curb the solar
boom. First, in or before July 2009, the national transmission system operator and the
regional distribution system operators responsible for handling applications to connect
new photovoltaic installations to the electricity grid started refusing applications.227
Later, in February 2010, they agreed to a moratorium on approving applications to
connect new photovoltaic installations to the grid.228
385. Second, after more than a year of discussion, by amending Act 180 on 21 April 2010,
the 5% brake rule was abolished. As a result, the ERO could reduce the FIT by more
than 5% for plants connected in the following year i.e. in 2011. The reasons for doing
so were stated in a press release of the Ministry of Industry and Trade of 24 August
2009:229
“The reason for the amendment of the act is primarily the situation in the
area of photovoltaic devices, where the grant policy from the part of the
state has ceased to fulfil its primary function
[…]
The ongoing reduction in the prices of photovoltaic panels is leading to
the uncontrolled development of solar power stations. Whereas
technological advances have reduced the price of photovoltaic panels by
more than 40%, by law the Energy Regulation Office can only reduce the
purchase price of electricity for new renewable sources by 5% per year.
So at present a significant advantage is being provided to newly built
photovoltaic power stations compared to other sources of renewable
energy.
[…]
[I]f the current state were maintained the price for the delivery of
electricity would rise by more than CZK 50/MWh for all customers in the
226
WS, §13.
227
Rej. §94, relying on Exh. R-171, Letter from J. Fiřt to the Minister of Industry and Trade, V.
Tošovský, 1 July 2009.
228
WS, §21.
229
The press release stated the intent of the Ministry to abolish the 5% brake rule starting from
1 January 2010, but the limit was eventually abolished from 1 January 2011 by Act 137/2010.
103
Czech Republic just as a result of increase in photovoltaic devices. In
2011 the price for customers would be even higher.
The purchase prices for electricity from photovoltaic devices are
guaranteed for 15 years, but thanks to new technology in certain cases
the return on the investment is a mere 5 years. The level of the purchase
price for electricity from a photovoltaic device is almost CZK 13/kWh,
whereas the market price for electricity is around CZK 2/kWh.”230
386. Third, through its National Renewable Energy Action Plan of July 2010, the State
indicated that hardly any additional solar generation capacity would be added during
the entire decade from 2010 until 2020.231
It was said that the Plan “would basically
exterminate the development of solar energy.”232
387. Fourth, in September 2010, the Government submitted a draft Act 330/2010 Coll. for
Parliament’s approval calling for a withdrawal of subsidies from all solar RES
producers except the smallest rooftop solar installations that had an installed capacity
of up to 30 kWh.233
The draft was approved by Parliament on 3 November 2010 and
the Act came into effect from 1 January 2011; however, the provisions limiting the
support only to the producers with that small capacity entered into force on
1 March 2011.
388. Yet, these measures failed to stem the tide of investment in solar RES. By contrast
they led to a “perverse dynamic” – to use the Respondent’s words – which saw an
increase in the number of solar PV projects before 1 January 2011, when most of the
measures just mentioned would come into effect.
389. As mentioned above, the FIT was funded through a compulsory surcharge set by the
ERO in its yearly price decisions and invoiced to all electricity consumers by the grid
operators as part of the electricity bill.234
The increased number of solar PV
230
Exh. R-175, Ministry of Industry and Trade will Equalize the Support of Renewable Energy
Sources, Ministry of Industry and Trade Press Release (www.mpo.cz), 24 August 2009.
231
Exh. R-142, Czech National Renewable Energy Action Plan, July 2010, pp. 77–79 (projecting 1650
MW of installed solar capacity in 2010 and 1695 MW installed by 2020).
232
Exh. R-198, J. Vlková, “Solar business will slow down, yet the price of electricity will soar,” Mlada
Fronta Dnes, 16 September 2010.
233
Exh. R-201, Explanatory Report to Draft Act No. 330/2010 Coll., 15 September 2010, p. 8. Act
330/2010 Coll. The Act did not affect installations put in operation before March 2011 and therefore is
not one of the measures challenged in this dispute.
234
Exh. R-037, ERO Price Decision No. 14/2005, 30 November 2005; Exh. R-038, ERO Price
Decision No. 9/2006, 27 November 2006; Exh. R-039, ERO Price Decision No. 9/2007 26 November
104
investments thus meant that Czech electricity consumers (including businesses and
households) would face considerable increases in electricity prices. On its part, the
Government would have to contribute to a portion of the FIT from its general budget at
a time when the Czech Republic was not only struggling with the effects of the global
financial crisis, but also suffering from a political crisis, which resulted in the
appointment of a technocratic caretaker government from May 2009 to July 2010, as
the early elections planned for 9 and 10 October 2009 had to be postponed to 29 and
30 May 2010, as a result of the Constitutional Court decision rendered on
10 September 2009.
390. The problems caused by the rising costs to the State of supporting the solar PV plants
as a consequence of the solar boom experienced in 2009 and 2010, were highlighted
in an “Explanatory Report to a proposed Act amending the Act on Promotion” dated 13
October 2010:
“According to the analyses of ERO made in cooperation with distribution
system operators in September […] there would be increase in the
electricity prices by 12.7 % for households and by 18.4 % for industrial
consumers as a result of the annual increase in the amount of the
contribution from the present CZK 166 per MWh to CZK 547 per MWh.
It is clear from the analysis of the impact of the contribution in the amount
of CZK 500 per MWh, which was prepared by the Coordination
Committee established by the Government on 22 September 2010, that
this level of contribution becomes liquidating for the Czech industry. If
this amount of contribution is actually included [in] the price of electricity,
there will be:
- A massive drop in tax revenues of the State, because due to the
increased costs for electricity numerous businesses will end up in loss
instead of having a planned profit;
- Immediate layoffs in major industrial enterprises amounting to tens of
thousands of employees who will be subsequently entitled to
unemployment benefits, housing assistance, etc. (the chemical industry
estimates up to 10 000 employees);
- Termination of business activities of some large industrial enterprises in
the Czech Republic and transfer of production to other countries.”235
2007; Exh. R-031, ERO Price Decision No. 9/2008, 18 November 2010; Exh. R-033, ERO Price
Decision No. 7/2009, 25 November 2009.
235
Exh. R-028, Explanatory Report to a proposed Act amending the Act on Promotion, 13 October
2010, pp. 2-3.
105
391. It was therefore thought necessary to take additional financial measures to limit the rise
of electricity prices and alleviate the burden on the Czech economy. Discussions on
these issues had commenced in November 2009.236
In fact, already on 23 September
2010, the Minister of Finance mentioned the three measures at issue in this arbitration,
i.e. the Solar Levy, the withdrawal of the tax exemption and the change to the
depreciation period:
“[t]he budget is the priority for the minister and new losses will be filled by
the novelty called solar tax.
[…]
My proposal cancels the 5-year tax exemption. This applies to all
facilities, not only those that are yet to be connected. The last year when
this tax exemption can be applied is 2010. In addition, I am moving the
technology which is now in the second or third depreciation group [to] the
fourth depreciation group. This means that things that used to
depreciated over 5 to 10 years, will be depreciated over 20 years.
[…]
In some places we tightened the screws, in others we released them and
the result [on the budget] is zero.”237
392. It was in these particular circumstances that the Czech Government withdrew the Tax
Incentives (i) and introduced the Solar Levy (ii).
(i) Withdrawal of the Tax Incentives
393. On 8 December 2010, through Act 346/2010, the Czech Republic adopted changes to
the Income Tax Act, abolishing the five-year income tax exemption and amending the
tax depreciation period for solar panels.
394. The reasons for withdrawing the tax exemption were mentioned in the Explanatory
Report accompanying Act 346/2010:
“The proposed changes are in response to the need to eliminate all legal
means for the indirect support of electric power generation from
renewable resources (mainly solar power plants) that is no longer
justified, and therefore they are making taxation on environmentally
236
See, for instance, Exh. R-202, “Additional payments for solar energy reached three billion; the
state may curtail their boom” (Novinky.cz), 2 November 2009.
237
Exh. R-206, P. Vašek, “We made concessions but it will not put the budget at risk,” Hospodáršké
Noviny, 24 September 2010.
106
friendly power generation sources and facilities stricter and eliminating
the tax-exempt status of income from the operation of environmentally
friendly power generation facilities. In order to simplify legal regulation
and enable easier administration, the elimination of this exempt status for
other environmentally friendly facilities has also been proposed.”238
395. Similarly, the rationale for amending the depreciation provisions were stated as follows:
“Since more than three quarters of costs need to be spent for the
technological part of solar power facilities and only one quarter needs to
be spent for the construction part of solar power facilities, and the
construction part is usually included in depreciation group 4 with a
depreciation period of 20 years (and in the case of construction projects
for a definite period even 30 years), the specified changes have been
proposed only for the technological part of the assets. For the purpose of
easier application of the proposal, the technological part, which consists
particularly of solar panels, converters and switches, is defined by its
inclusion in the Standard Production Classification groups with code
31.10, 31.20 or 32.10. The change has been proposed in view of the fact
that in the case of solar technology there has been a sharp decrease in
acquisition prices, particularly for solar panels, and an increase in their
efficiency.”239
396. Both the withdrawal of the tax exemption and the amendment to the depreciation
provision of the Income Tax Act were measures that had been taken before by the
Czech Republic in different contexts.240
(ii) Introduction of the Solar Levy
397. On 14 December 2010, through Act 402/2010, the Czech Republic introduced the
Solar Levy. When doing so, it was careful not to alter the framework of Act 180.
398. First, only those producers who benefited the most from the solar boom, i.e. solar
plants commissioned in 2009 and 2010 were subject to the Solar Levy. Initially, the
Solar Levy only applied for three years from 1 January 2011 for the PV plants put into
operation between 1 January 2009 and 31 December 2010.
238
Exh. R-221, Explanatory Report to Draft Act No. 346/2010 Coll., 26 October 2010, pp. 27−28.
239
Id., p.28.
240
See Rej., §164, and the examples cited therein.
107
399. Second, when setting the Solar Levy, care was taken to ensure that the initial payback
period of 15 years for capital expenses and the reasonable profit of 7% promised
through Act 180 would be retained. As Mr. explained:
“Before settling on a Solar Levy, the Ministry of Industry and Trade
requested ERO to assess whether simple payback and return on
investment parameters would still be met. We assessed the proposed
levy and determined that investors would still receive simple payback of
their investment in less than 15 years and that return over the life of the
investment would remain appropriate, i.e. above the 7% WACC. We
therefore considered that the levy was properly calibrated to reduce the
excessive profit provided by the Subsidies.”241
400. Eventually, the Solar Levy was set at 26% initially for a period of three years to ensure
that these elements of Act 180 were maintained. The Government resolution
accompanying Act 402 explained this as follows:
“The ERO in the determination of the purchase prices mainly acts
according to Act No. 180/2005 Sb. on support of electricity production
from RES, as well as related implementing regulations. One of the
significant documents is Decree of ERO No. 475/2005 Coll., as
amended, which among other things stipulates the technical and
economic parameters applied to the calculation of the prices for a given
type of plant for production of electricity from RES and the concerned
calendar year. Typically this concerns measurable investment costs,
assumed period of usage and lifecycle of the given type of source.
The ERO last time amended this Decree in mid-2009 under Decree No.
409/2009 Coll.), in which it responded to the decline in the prices of solar
technology and on the basis of evaluation of concrete projects from the
first half of 2009, it set reference investment costs for installed sources
with an output above 30 kWp in the amount of 90 thousand CZK/kWp,
respectively 90 million CZK/MWp.
If we use this binding legislative condition to calculate the purchase price
and if we set the next ROI parameter at 11 years at 7% discount, we get
a purchase price of CZK 9000/MWh. This value is 26 % lower than the
purchase price set for 2010 in the amount of CZK 12150/MWh (due to
the limitation of decline to only 5 %). While the ROI guaranteed by law is
15 years.
241
WS, §25.
108
The simple ROI of 11 years for calculation of the size of the withholding
tax was chosen in view of the fact that the same period was chosen in
the amendment bill to Act No. 180/2005 Coll. (No. 137/20101 Coll.) as
the threshold value, which if exceeded makes it possible to choose an
extraordinary (steeper) drop of the price, than the standard maximum of
5%”.242
401. As mentioned above, the Czech Constitutional Court observed that despite the
withdrawal of the Tax Incentives and the introduction of the Solar Levy, a PV plant
meeting the ERO’s technical parameters would achieve a simple payback of capital
expenses within 15 years and a 7% adequate return.243
402. This conclusion was confirmed by the Respondent’s expert Mr. Peer. He replicated the
model used by the ERO in setting the FIT and assessed whether, following the
adoption of the contested measures (including the Solar Levy), a model PV plant with
the technical parameters specified by the ERO would achieve (i) simple payback of
capital expenses within 15 years; and (ii) the 7% adequate return. According to his
analysis, a plant commissioned in 2010 and meeting the ERO’s technical parameters
would achieve a simple payback in years and would obtain a rate of return of %
per year over its 20-year useful life.244
His analysis was not refuted. Thus, even after
the introduction of the Solar Levy, the rate of return and the payback period mentioned
in Act 180 and its implementing regulations remained for those solar PV plants that
met the ERO’s technical parameters.
403. Third, as mentioned above, the Czech Republic also provided an opportunity for
individual solar producers to seek relief if the Solar Levy affected them adversely.
Indeed, the Ministry of Finance established a procedure under which solar RES
producers on whom the Solar Levy had a “strangling effect” could pay the Solar Levy
over a longer period of time.245
404. The withdrawal of the Tax Incentives and the introduction of the Solar Levy did
produce the intended effects. Indeed, while the ERO first set the surcharge for
242
Exh. R-216, Draft Government resolution on the problem of electricity price increases due to RES
support presented by Ministry of Finance for Government session of 20 October 2010, p. 4.
243
Exh. R-084, §68.
244
Peer ER 1, Table 3; Peer ER 2, Table 1 (showing the simple payback period and rates of return for
the Claimants’ plants as well as the ERO reference plants commissioned in 2009 and 2010).
245
Exh. R-225, Decision of the Grand Chamber of the Czech Supreme Administrative Court, case No.
1 Afs 76/2013-57, 17 December 2013.
109
electricity support at CZK 578 per MWh,246
after Act 402 was published, it reduced the
surcharge by 36% to 370 CZK per MWh, limiting electricity price growth to around
5%247
and bringing it in line with the expectations of the Government when Act 180 was
enacted.
405. As mentioned above, Act 180 was repealed and replaced by Act 165/2012 as of
1 January 2013. Act 165 did not address the Solar Levy. Act 310/2013, however, which
amended Act 165/2012, extended the Solar Levy for solar plants commissioned in
2010 at a rate of 10%, for the whole period during which the solar PV plant was entitled
to the support. The possible extension of the Solar Levy had been contemplated when
it was introduced.248
In any event, despite the extension of the Solar Levy, it was
anticipated that a plant operating in accordance with the parameters set by the ERO
would achieve a 15 year payback of capital expenses and a return of 7% as
guaranteed in the framework of Act 180.249
406. On the basis of the foregoing analysis, the Tribunal concludes that under the
framework established through Act 180, the Czech Republic guaranteed solar RES
producers meeting specific technical and economic parameters a level of revenue
through a FIT system ensuring a 15 year payback of capital expenses and an annual
return on investment of at least 7% for 15 years. The contested measures were
reasonable, being a carefully calibrated response to developments in the Czech solar
sector at a time of economic and political uncertainty.250
The foregoing analysis shows
that the measures left the guarantees of payback and return intact for plants meeting
the required parameters.
c. Legitimate expectations
407. It is common ground that the FET obligation is breached when the legitimate
expectations of an investor are not met. These expectations must arise from
246
Exh. R-035, ERO Price Decision No. 04/2010, 30 November 2010, Art. 5.1.
247
Exh. R-220, “Energy Regulatory Office amended its November decision as expected,” ERO Press
Release, 29 December 2010.
248
Exh. R-108, R. Šitner and Z. Kubátová, “The state will tax the solar power plant operators only for
three years,” Hospodárské Noviny, 3 November 2010.
249
Peer ER 2, §2.2.2 and Table 3.
250
This was also the conclusion of the Czech Constitutional Court (Exh. R-084). The Commission
observed that the Levy was introduced by the Czech Republic to ensure that solar RES producers
were not overcompensated (Exh. 277, Commission Decision, §51).
110
representations made by the state, on which the investor relied at the time of its
investment. They must be objectively reasonable251
and must take into account all
relevant circumstances:
“To be protected, the investor’s expectations must be legitimate and
reasonable at the time when the investor makes the investment. The
assessment of the reasonableness or legitimacy must take into account
all circumstances, including not only the facts surrounding the
investment, but also the political, socioeconomic, cultural and historical
conditions prevailing in the host State. In addition, such expectations
must arise from the conditions that the State offered the investor and the
latter must have relied upon them when deciding to invest”.252
408. It is also common ground that an investor can have no legitimate expectation that the
host State’s laws will not change.253
Indeed, as observed by the tribunal in Micula:
“The state has a right to regulate, and investors must expect that the
legislation will change, absent a stabilization clause or other specific
assurance giving rise to a legitimate expectation”.254
409. To ascertain whether the state has granted a stabilization commitment or given a
specific assurance, the form, the content and the clarity of the alleged promise are of
critical relevance.255
As observed in Total v. Argentina:
“the form and specific content of the undertaking of stability invoked are
crucial. No less relevant is the clarity with which the authorities have
expressed their intention to bind themselves for the future”.256
410. In line with this jurisprudence, the Claimants admit that “any general legal provision”
cannot give rise to legitimate expectations,257
and that “commitments must […] be
specific to have such effect”.258
251
Charanne B.V. and Construction Investments S.A.R.L. v. Kingdom of Spain, SCC Case No
062/2012, Final Award, 21 January 2016, (“Charanne”), Exh. RLA-165, §495.
252
Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ecuador, ICSID Case No.
ARB/04/19, Award, 18 August 2008, §340.
253
Tr. (Day 1) 25:11-15 (“[I]t is not our contention that an investor can legitimately expect that the
laws at the time of investment will not be changed. That would be foolish to expect. Even investment
treaties do not cause a freezing of the law.”).
254
Micula et al. v. Romania, ICSID Case No. ARB/05/20, Award, 11 December 2013 (“Micula”), §666.
255
Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability, 27 December
2010, §121. See also Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID
Case No. ARB(AF)/11/2, Award, 4 April 2016, §547 (stating that the state’s promise or representation
must be “precise as to its content and clear as to its form”).
256
Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability, 27 December
2010, §121.
111
411. Accordingly, all relevant circumstances must be taken into account to determine
whether an investor’s expectations of stability are legitimate, including the form and
content of the promise of stability. The investor’s expectations are to be examined
objectively, and the investor must have relied on the state’s promises of stability at the
time of making its investment.
(i) Solar Levy
412. The Claimants submit that the plain language of Article 6(1)(b)(2) of Act 180 relating to
revenues per unit of electricity amounts to a stabilization guarantee.259
For them, Act
180 contains “a statutory promise that plants connected to the grid would receive a
fixed tariff for 20 years”260
and “investors could expect that the Support Scheme gave
price guarantees on specific revenues for 20 years.”261
On the basis of the
Respondent’s commitment in Act 180, the Claimants, so they say, legitimately
expected the FIT to be stable for the first 20 years of operation. However, the
Respondent introduced the Solar Levy, which, in effect, reduced the FIT by the amount
of the Levy, thereby breaching the Claimants’ legitimate expectations.
413. The Tribunal does not agree with the Claimants’ position. The Tribunal has extensively
reviewed Section 6(1) of Act 180 above [§§358 et. seq.] and concluded that it contains
no separate guarantee of an absolute level of revenue, set independently of the FIT
system that guarantees a 15 year payback of capital expenses and a return on
investment of at least 7% per year over 15 (later 20) years. Indeed, section 6(1)(b)(2),
particularly the words “amount of the revenues stays unchanged”, cannot be read in
isolation. The provision must be read in context with the rest of section 6(1). As
explained above [§§358 et. seq.], section 6(1) of Act 180 guarantees, through a FIT
system, solar PV plants put into operation after Act 180 (such as the Claimants’
plants), a level of revenue ensuring a 15 year payback of capital expenses and a profit
of 7% per year over a period of 15 (later 20) years, provided these plants meet specific
257
Reply, §227.
258
Reply, §227.
259
Reply, §175, (“Act 180/2005 provided […] an express stabilisation: the tariffs applicable at the time
of connecting a solar plant to the grid would remain unchanged for 15[20] years. It is an express
promise by the State that a certain status of the law would not be changed, i.e. remain stabilized.”).
260
Reply, §93.
261
Reply, §42.
112
parameters. Interpreting this provision in any other fashion would do violence to the
text of the provision, and to the broader context of section 6(1).262
414. The Claimants should have been aware that the Support Scheme only guaranteed a
15 year payback of capital expenses and at least a 7% return for 15 years.263
This is
because both Act 180 and the Technical Regulation were referred to in the legal
opinion of Ueltzhöffer Balada.264
Further, Mr. ’s presentation of June 2009 also
mentioned the Technical Regulation.265
415. It is not disputed that the Claimants continue to receive a FIT that ensures a 15 year
payback of capital expenses and at least a 7% return on investment per year. In his
First Report, Mr. Peer estimated the Claimants’ payback period and rate of return on
the basis of the 7% WACC provided by the ERO, as well as the lower WACC used by
the Claimants’ expert Mr. . He concluded that even after the contested
measures, the Claimants’ revenue remained at a level that would allow a payback
within less than 15 years and a rate of return exceeding 7%.266
In his Second Report,
Mr. Peer calculated the payback period and the rate of return on the basis of the
Claimants’ own inputs for OPEX growth, tax rates and PV panel degradation rates in
lieu of utilizing the regulatory rates assumed by the ERO for these parameters, as he
had done in his First Report. Like in his First Report, he again found that the Claimants’
plants achieved a level of revenue that would allow a payback of capital expenses in
less than 15 years and a profit above 7%.267
The Claimants did not seek to rebut these
findings; they gave no instructions to opine on them to their expert Mr. .268
262
The 5% brake rule does not alter the guarantees contained in Act 180 and its supporting
framework. Indeed, even if any expectations was created by this provision, it remains that through Act
180 and its supporting framework, the Czech Republic only promised a 15 year payback of capital
expenses and a return on investment of at least 7% per year over a period of 15 (later 20) years.
263
SoC §64 (“The presentation by Mr. […] made also explicit reference to the Public Notices
475/2005 and 150 of the ERO specifying the implementation of the Support Scheme. In other words,
the full Support Scheme was discussed and deliberated, allowing Stefan and Jürgen Wirtgen to get
the full picture of the legal framework in force at that time.”).
264
Exh. C-054, Legal opinion concerning the duration of power feed-in remuneration when erecting
photovoltaic systems in the Czech Republic by Ueltzhoffer Balada, 2009, p.2.
265
Exh.C-53, p.9.
266
Peer ER 1, §§4.4.2-4.4.3.
267
Peer ER 2, §§3.3.6, 3.3.8.
268
Tr. (Day 3) 531:25-532:1-5 (“I have not been instructed to review Mr. Peer's calculations of
payback periods or implied rate of returns. I have read the Report but I have not done anything to
scrutinize the results or even reviewed the inputs going into that calculation. So I, from the bottom of
my heart, I just don't know.”).
113
Neither did they question them during Mr. Peer’s cross-examination. In fact, Mr.
himself did confirm that the Claimants were satisfied with their investment:
“Q. Now, you’re a very seasoned businessman, I think, and you must
have an idea whether this was a good investment or was it not. Can you
share with us what your present impression is?
“A. Well, basically, I would say that, up till now, we are satisfied with the
investment but looking at the technical part of the plants, now, in the first
years we had not a lot of repairs to do”.269
416. On the basis of this analysis, the Tribunal concludes that, even after the contested
measures, the Claimants’ revenue remains within the parameters set by Act 180 and
its supporting framework, i.e. the Claimants continue to receive a level of revenue
through the FIT system that ensures a 15 year payback of capital expenses and a
return on investment of at least 7% per year over a period of 15 (later 20) years. In the
circumstances, as the guarantees given by the Czech Republic continue to be
complied with in respect of the Claimants, there can be no breach of the Claimants’
legitimate expectations.
417. The Claimants have specifically referred to the Support Scheme as the basis of their
alleged expectations.270
The Tribunal has held that the Support Scheme could not
legitimately have given rise to such expectations. It has also held that the expectations
that the Support Scheme could have legitimately created continue to be met. Thus, the
Tribunal could dispense with reviewing the other alleged representations on which the
Claimants rely as a source of their expectations, especially in circumstances where the
latter consider this exercise unnecessary and view these other representations as
merely confirming their expectations arising out of the Support Scheme.271
For the
sake of completeness however, the Tribunal nevertheless proceeds to examine these
representations.
269
Tr. (Day 1) 192:11-18.
270
SoC, §205, cited in Reply, §238 (“Claimants specifically referred to this Suport [sic] Scheme as the
basis of their legitimate expectations.”).
271
Reply, §238 (“Even though, in view of the unambiguous language of the Support Scheme itself,
there was no further need to show that these provisions were objectively to be understood to contain
a guarantee to remain unchanged, Claimants also pointed to a series of public statements by senior
government members, explanatory notes to the relevant laws and official communications which
affirmed the existence of these guarantees.”).
114
418. Besides the text of Act 180, the Claimants submit that the “intention of the legislator”
confirms that solar RES producers were to be guaranteed a fixed FIT, for which they
rely on an “Explanatory Report to Act 180”.272
The Tribunal sees no merit in this
submission. First, there is no “Explanatory Report to Act 180”. The 2003 Explanatory
Report which the Claimants invoke was submitted to the Czech Parliament along with
the initial bill which evolved into Act 180 16 months later. In any event, while the
wording and in part the content273
is different, section 8(1)(b)(1) of the bill referred to a
“guarantee” of return of investment costs within 15 years and “reasonable profit.”274
419. The Claimants also rely on the following language in the 2003 Explanatory Report :
“[The] Promotion system is based on: […] Provision of guarantees to
investors and owners of facilities producing electricity from renewable
sources which are beneficiaries of the promotion pursuant to the bill that
the profit for one unit of energy produced from renewable sources, for
the benefit of producers, shall be guaranteed for 15 years since the
putting into operation (or 15 years for facilities which were put into
operation before the act comes into effect, respectively).”275
420. The Tribunal fails to discern in that report and the bill a commitment that goes beyond
the guarantee of a FIT at a level permitting a 15 year return of capital expenses and a
“reasonable profit” which later became the “adequate return” measured at a WACC of
7%. As was just seen above, the Claimants continue to benefit from these guarantees
despite the Solar Levy.
421. This being so, even if one were to accept that the 2003 Explanatory Report had a
different content, quod non, the Claimants have not alleged that they had reviewed, let
alone relied on the report when making the investment. At the same time, they
themselves recognize that an investor must rely on the alleged representations at the
272
See, for instance, Claimants’ Closing Presentation, p.14 citing Exh. C-041, Explanatory Report
(“These conditions were designed in the way so that the provided support created a favorable climate
for investors with a sufficiently long and effective guarantees (15 years) […].”).
273
See, for instance, Rej., §58 where the Respondent points out that the bill contemplates a system
of tradeable green certificates, which the Explanatory Act considers as one of the “bases” of the
“Promotion System.” Act 180 however introduces a system of green bonuses instead of tradeable
certificates.
274
Exh. C-041, Explanatory Note of November 12, 2003 to Act 180/2005.
275
Exh. C-041, Explanatory Note of November 12, 2003 to Act 180/2005, p. 7.
115
time it makes its investment.276
The requirement that an investor must have relied on a
representation was well-explained in Invesmart v. Czech Republic:
“there is a temporal dimension to evaluating a claimed expectation […]
[I]t is not appropriate to base a claimed expectation upon the content of
[documents/discussions] to which the investor was not privy at the time.
[…] [I]f [an investor] was not privy to [documents/discussions] nor
informed of its results, the investor cannot use [them] as proof of its
expectation at the time. Such documents can confirm a claimed
expectation, but they cannot be used to establish a particular factual
element of a claimed expectation if such element was unknown to the
investor at the time”.277
422. The Claimants also invoke other documents, which – according to them – show that
the Czech Republic made “specific representations” guaranteeing a fixed FIT.278
Here
again, the Claimants’ arguments fail to convince. Most of these “representations” state
that Act 180 guarantees a FIT for a period of 15 (later 20) years.279
This says nothing
more than what the Tribunal understands the regulatory framework to guarantee. It
276
SoC, §194 (“It should be common ground between the parties that [the FET] standard is breached
if [t]he investor relied on certain expectations when making the investment.”). See also for e.g. Reply,
§225 where the Claimants rely (for the second time) on CME v. Czech Republic, §611: “[legitimate
expectations are violated] by evisceration of the arrangements in reliance upon which the foreign
investor was induced to invest.”
277
Invesmart B.V. v. Czech Republic, UNCITRAL, Award, 26 June 2009 (“Invesmart”), §§252-253.
278
For instance, the 2006 Report on Meeting the Indicative Target for the Production of Electricity
from Renewable Sources (Exh. C-100), which mentioned that a “key feature” of the Support Scheme
was “the preservation of the level of feed-in tariffs for 15 years for plants already in operation”. See
also Exh. C-035, Statement of Mr. Urban, the Minister of Industry and Trade, during the parliamentary
deliberations of the Support Scheme on 31 March 2005 (“In the field of the support of electricity from
renewable energy sources, the bill brings especially the long-term guarantee of feed-in tariffs and
therefore it secures a stable business environment, which the potential investors call for intensively.”).
279
See, for instance, Exh. CE-035 (Statement of Milan Urban, Minister of Industry and Trade of the
Czech Republic, during the Parliamentary deliberations of the support scheme in the Chamber of
Deputies on 31 March 2005), p. 1: “In the field of the support of electricity from renewable energy
sources, the bill brings especially the long-term guarantee of feed-in tariffs and therefore it secures a
stable business environment, which the potential investors call for intensively.”; Exh. CE-099 (2004
Report on the Achievement of the Indicative Target for Renewable Electricity), p. 3: “[Act 180]
guarantees a level of return on each unit of electricity produced for a period of 15 years.”; Exh. CE-
044 (Information from the Czech Renewable Energy Agency about the support system of the Act on
Support), p. 2: “The amount of the feed-in tariffs is guaranteed for period of 15 years […]. In contrast
to green bonuses, the fifteen-year guarantee of amount of revenues for electricity unit since the year
of putting the facility for production of electricity from renewable energy sources into operation must
not be influenced.”; Exh. CE-046 (Presentation given by the ERO in Prague on 26 January 2006), p.
2: “keeping of support for 15 years in due consideration of price index of industry producers
(regarding feed-in tariffs).”; Exh. CE-048 (Presentation given by the Czech Energy Agency), p. 1:
“guarantee for tariffs for 15 years (tariff assessments of ER[O]).”; Exh. CE-040 (Excerpt from the FAQ
section on the Energy Regulatory Office’s homepage dated 15 November 2009), p. 1: “feed-in-tariffs
and green bonus for the photovoltaic systems commissioned after 1 January 2008 may be claimed for
20 years.”
116
does not refer to a promise exceeding a 15 year payback of capital expenses and a
7% rate of return. The statements invoked by the Claimants contain no details of the
level of the FIT that is guaranteed; that information is found in Act 180 and the
supporting framework, which was publicly available and which any potential investor
would refer to when deciding whether to invest in the Czech Republic. While some
representations admittedly do ambiguously mention “preservation of the level of feed-in
tariffs for 15 years for plants already in operation”,280
this language cannot change the
text of Act 180 and its supporting framework.
423. Further, the Claimants again have not alleged that they reviewed and relied on these
documents before making their investments in the Czech Republic. As a result,
assuming that the content of these statements contained promises beyond those
accepted by the Tribunal, quod non, the Claimants could have derived no legitimate
expectations from these sources. In fact, the Claimants admit, that ex post
interpretations of the Support Scheme cannot be used to test the Claimants’ ex ante
legitimate expectations.281
424. Finally, the Claimants rely on what they call “acts of state” as a source of their
expectations. They submit that they received guarantees through the licences, price
decisions made by the ERO, and individual contracts. However, these instruments
provide no representation of the sort claimed by the Claimants.
425. The Tribunal thus concludes that Act 180 did not guarantee fixed revenues as alleged
by the Claimants. Hence, the Claimants had no legitimate expectations and there can
be no issue of breach of any such expectations.
426. Having thus examined – and rejected – the Claimants’ arguments concerning the
breach of their legitimate expectations in respect of the Solar Levy, the Tribunal
proceeds to examine the Claimants’ submissions in respect of the Tax Incentives.
280
Exh. CE-100, 2006 Report on Meeting the Indicative Target for the Production of Electricity from
Renewable Sources, p.19.
281
Reply, §44.
117
(ii) Tax Incentives
427. The second set of measures challenged by the Claimants concern the discontinuation
of the Tax Incentives granted by the Czech Republic. As in the case of the Solar Levy,
the Claimants submit that the Czech Republic had made a commitment that the Tax
Incentives, i.e. the preferential depreciation period and the tax exemption, would
remain unchanged for the life of the PV plants:282
“[the Tax Incentives] amount to a
prospective guarantee promising an investor a certain tax treatment for a certain
number of years”.283
428. It is not disputed that the Tax Incentives existed before the Support Scheme came into
force. In respect of the preferential depreciation period, the Claimants assert that “the
tax depreciation provisions [that apply] prospectively for a certain period into the future
[…] amount to very clear stabilization assurances.”284
The Respondent opposes this
position and points out that because solar panels did not fall under any of the defined
asset classes under the original provisions of the Income Tax Act, they fell under a
residual category of “other tangible assets” for which the Act simply lists the
depreciation period.285
429. The Claimants have not relied on any statutory language promising that solar panels
would be depreciated over a particular period of time and there is indeed no mention
that the provisions would not be changed. In fact, the depreciation provisions of the Act
have frequently been amended and the Claimants initially appeared uncertain about
the precise regime applicable to solar panels.286
In the circumstances, the Tribunal
cannot accept that the Claimants had a legitimate expectation that the depreciation
periods would not be altered.
282
The Tribunal understands the Claimants’ submission to address both the tax exemption and the
preferential tax depreciation period.
283
Rej., §407.
284
Reply, §303.
285
Exh. R-006, Act 586/1992 Coll. on Income Tax, §30 and Annex 1 (original depreciation provisions).
286
SoC, fn. 39 (“the distinction between parts falling under the 5 year or 10 year depreciation period is
not always entirely clear”).
118
430. In respect of the tax exemption, the Claimants rely on Section 19(1)(d) of the Income
Tax Act, which reads as follows:
“Section 19. Tax Exemptions
(1) Exempted from Tax shall be […]
(d) revenues from […] solar facilities […] in the calendar year in which
they were put into operation for the first time and the five years
immediately following.287
431. The Claimants submit that the “Explanatory Report to Act 180” “unequivocally
confirmed and indeed preserved the already existing tax exemptions”288
, as a result of
which the tax exemption “became an integral part of the Support Scheme”.289
432. For the reasons mentioned above [§§418 et. seq,], the Tribunal does not consider it
appropriate to rely on the so-called Explanatory Report of Act 180. In any event, even if
it were to do so, the Tribunal would find nothing in that report resembling a stabilization
guarantee. Indeed, the 2003 Explanatory Report merely states that:
“[The] Promotion System is based on: […] [the] Preservation of tax
allowances in the extent determined in the Income Tax Act, Real Estate
Tax Act, Value Added Tax Act, […]”290
433. The Explanatory Report contains no representation that the tax exemption would
continue to apply throughout the lifetime of the solar PV plants. The Claimants have
not cited any rule of Czech law excluding or limiting the legislators’ powers to amend a
tax exemption. In reality, the Czech tax legislation has frequently been amended,
including, as Claimants admit, through no less than five withdrawals of tax
exemptions.291
434. As a source of their expectations that the tax exemption would continue, the Claimants
also refer to a presentation which the ERO made in October 2006 which had a mention
287
SoC, fn. 104 (citing Act 586/1992 Coll. On Income Tax, §19(d) (original tax exemption provision)).
288
Reply, §63.
289
Reply, §64.
290
Exh. C-041, Explanatory Note of November 12, 2003 to Act 180/2005.
291
Reply, §69.
119
“‘tax holiday’ - 1 + 5 years”.292
For the same reasons as those mentioned above, the
Tribunal cannot see a stabilization guarantee in these words. The presentation simply
notes the existence of a “tax ‘holiday’” without more. This note cannot be read as a
promise on the part of the Czech legislators not to change the country’s tax laws in the
future.
435. The Czech Constitutional Court too rejected the challenge on the tax exemptions for
the same reasons that it upheld the imposition of the Solar Levy.293
436. In any event, as was already noted earlier, legitimate expectations can only arise if the
investor relies on the representations made by the State at the time of its investment.
Here, the Claimants have not shown that they relied on the 2003 Explanatory Report or
the ERO presentation when they made this investment.
437. In the absence of a commitment by the Respondent that the Tax Incentives would not
be altered, the Claimants should expect that the laws in force at the time of its
investment would change. The expectations which the Claimants might have had
cannot be deemed legitimate and, therefore, cannot benefit from the protection of the
Treaty. As the Claimants recognize: “an investor can[not] legitimately expect that the
laws at the time of investment will not be changed.”294
d. Deliberate harm
438. The Claimants’ allege that the Respondent “deliberately caused harm to Claimants” in
violation of the Treaty’s FET standard.295
They insist that the Czech Republic attracted
investors in the solar PV sector on the basis of the guarantees provided in Act 180 in
order to meet the EU’s targets and, once those targets were met, the Republic revoked
those guarantees, a conduct that is neither fair nor equitable. The situation was “selfinflicted”
and the Respondent “can hardly plead ignorance”.296
These claims were not
specifically addressed at the hearing.
292
SoC, §49, citing Exh. C-048, “Support of renewable energy sources and energy saving”, ERO
Presentation, slide 1. The Claimants also refer to another ERO presentation of 26 January 2006 (Exh.
C-047), but that presentation does not mention of the Income Tax Act.
293
Exh. R-084, §84.
294
Tr. (Day 1) 25:12-14.
295
Reply, §269.
296
Claimants’ Comments on the New Evidence, §32.
120
439. The Tribunal cannot agree with the Claimants. While it is, of course, true that the FET
standard may be breached if a state’s conduct is not “substantively proper” – to use the
words of the Micula tribunal – the Tribunal sees no impropriety here.297
The
circumstances of this case are not those contemplated by the tribunal in Waste
Management v. Mexico, when it observed that a “deliberate act” by a state to “set out
to destroy or frustrate” an investment by “improper means” could constitute a violation
of the fair and equitable treatment standard under the North American Free Trade
Agreement.298
Neither are the circumstances here comparable with those in Vivendi II,
where the Tribunal concluded that the respondent “improperly and without justification”
pursued an “illegitimate campaign” against the investment. The circumstances here are
quite different.299
440. First, there is no evidence that Act 180 was designed to promote “foreign” investment,
or that the Respondent attracted the Claimants’ investment in particular. In reality, the
Czech legislature did not anticipate that the Act would prompt significant growth in
solar PV plants among a much larger group of electricity producers from other RES. It
is thus not correct to say that the Czech Republic “deliberately” offered a high FIT to
attract solar PV investors like the Claimants. Neither is it correct to say that solar PV
investors were “specifically targeted” so that the Czech Republic could meet the
targets required by the 2001 EU Directive. Indeed, this Directive is not strictly binding,
as Mr. , the Claimants’ expert admitted.300
The Czech Republic was thus
under no obligation to increase its solar PV capacity in 2005 when Act 180 was
introduced. Further, the National Renewable Energy Action Plan of July 2010 made
clear that the targets set under the 2009 EU Directive would not be met by increased
investments in solar PV plants.
297
Micula, §529 (“In the Tribunal’s view, the correct position is that the state may always change its
legislation, being aware and thus taking into consideration that: (i) an investor’s legitimate
expectations must be protected; (ii) the state’s conduct must be substantively proper (e.g., not
arbitrary or discriminatory); and (iii) the state’s conduct must be procedurally proper (e.g., in
compliance with due process and fair administration”).
298
SoC, §188 relying on Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB
(AF)/00/3, Award, 30 April 2004, §138.
299
SoC, §189 relying on Compania de Aguas de Aconquija S.A. and Vivendi Universal S.A. v.
Argentine Republic, ICSID Case No. ARB/97/3, Award, 20 August 2007, §§7.4.19 and 7.4.39.
300
ER 1, §17 (“Mr. Jones makes a point in his report that the First EU Directive targets were
not legally binding. While this is true, based on the regulatory developments put in place, there is no
doubt that the Government was committed to reaching this target, be it a legally binding one or not.”).
121
441. Second, the Claimants have not made a case that they were discriminated against.301
The withdrawal of the Tax Incentives and the imposition of the Solar Levy equally
affected all domestic and foreign producers that had commissioned solar PV plants in
2009 and 2010. They did not single out the Claimants.
442. Third, the contested measures are not – as the Vivendi II tribunal would have it –
“improper and without justification”. The Tribunal has reviewed the context in which
these measures were introduced above. It has found that the Czech Republic
introduced the measures in pursuit of legitimate objectives including restoring
equilibrium in the solar sector, protecting consumers from substantial electricity bill
increases and augmenting budgetary resources in a time of global financial crisis. The
measures were carefully tailored to limit their effects to those solar RES producers that
had benefited from the solar boom. In the circumstances, the Tribunal cannot agree
that the disputed measures were either arbitrary or unreasonable.
443. In conclusion, no “deliberate harm” was caused to the Claimants. As a result, the
Claimants’ FET claims in this respect cannot succeed.302
444. In their later submissions and in course of the hearing, the Claimants appeared to
suggest a different breach of the FET standard. They contended that the Czech
Republic failed to act promptly and adequately address the solar boom.303
They also
suggested that the Respondent knew earlier that it would introduce the contested
measures, but chose not to do so, a conduct which “would be the equivalent of bad
faith and be squarely incompatible with the [FET] obligation”. Neither argument was
fully substantiated. In the absence of further detail, the Tribunal cannot but reject both
arguments. In any event, as mentioned above, the measures complained of were
introduced in 2010 pursuant to discussions that had begun in 2009, and were taken in
301
See, for e.g. SoC, §165, where the Claimants allege that the Respondent has breached its
obligations under Article 7(2) (umbrella clause), 2(2) (fair and equitable treatment) and 4(1) (full
protection and security) of the Treaty. See also Tr. (Day 1) 91:24-25 where the Respondent noted that
the Claimants have not asserted a discrimination claim under the BIT. This submission was not
specifically refuted.
302
In their RfA, the Claimants alleged that the contested measures “also violated the prohibition of
arbitrary or discriminatory treatment” (§62), repeated this allegation in a one line sentence in their
SoC (§17). This claim was not reiterated in their later submissions or at the hearing. Further, the
Respondent’s submission that the Claimants had not asserted a discrimination claim under the Treaty
was not specifically refuted. Thus, the Tribunal believes that the Claimants no longer pursue this
claim. To the extent that they do, the reasoning above would equally apply to reject the claim.
303
Claimants’ Comments on the New Evidence, section B.II.
122
response to the solar boom of late 2008, 2009 and 2010, which is when the Claimants’
invested. Thus, it is unclear to the Tribunal how the challenged measures could have
been introduced earlier. Further and in any event, it is not the role of this Tribunal to
second-guess the Czech Republic’s discretion in the manner in which it carries out its
policies. Its role is to examine the propriety of the impugned measures, which it has
done above.
445. For the foregoing reasons, the Tribunal dismisses the FET claims. It finds that the
Czech Republic had not furnished any guarantees of the kind alleged by the
Claimants. Neither had the Czech Republic “deliberately attracted” and then harmed
solar RES producers.
446. The Claimants accept that, absent a stabilization guarantee, changes to domestic law
for a legitimate public purpose would not entail liability.304
As the Tribunal has found no
stabilization guarantee of the kind suggested by the Claimants and has held that the
contested measures were introduced for a legitimate purpose, the Tribunal could stop
its analysis here. Indeed, on the Claimants’ own case, it need not review the other
alleged violations of the Treaty. For the sake of completeness however, the Tribunal
will briefly review the Claimants’ full protection and security and umbrella clause claims
below.
E. FULL PROTECTION AND SECURITY
1. The Claimants’ Position
447. The Claimants submit that many tribunals have accepted that the standard of full
protection and security includes the obligation to provide legal security, as well as the
obligation “not to (partially) rescind rights granted under the respective legal regime”.305
On this basis, they claim that by taking the impugned measures, the Respondent
breached its obligation under Article 4(1) of the Treaty.
304
Reply, §§297-301 ("[A]rbitral tribunals clearly emphasize the following: on the one hand, the
legislator may exercise its sovereign regulatory powers by changing the law for a legitimate public
purpose. On the other hand, it cannot do so with respect to the foreign investor to whom, in the
exercise of the same sovereign powers, it has promised the contrary, otherwise compensation for
damages is due.").
305
Reply, §280.
123
2. The Respondent’s Position
448. The Respondent denies the Claimants’ submissions. According to it, the FPS standard
cannot serve to hold a State liable for changes in its domestic law.
3. Analysis
449. Article 4(1) of the Treaty reads as follows:
“Investments by investors from either Contracting State shall enjoy full
protection and security in the territory of the respective other Contracting
State”.
450. The Claimants submit that the full protection and security obligation reflected in Article
4(1) of the Treaty requires the Respondent to provide both physical and legal security.
The latter contains an obligation “not to (partially) rescind rights granted under the
respective legal regime”.306
The Respondent breached Article 4(2) of the Treaty when it
abrogated the “legal protection” offered to the Claimants which consisted of “the [Tax
Incentives] and the guarantees of Act 180/2005”.307
451. The full protection and security standard requires a state to provide a framework that
protects an investment from adverse interference. On the basis of the analysis above,
there has been no adverse interference with the Claimants’ investment. Indeed, the
Tribunal has found that the Czech Republic had not furnished any guarantees of the
kind alleged by the Claimants. What it had guaranteed was that solar PV plants that
met specific technical and economic parameters could expect a FIT set at a level that
allowed a 15 year payback of capital expenses and at least a 7% rate of return over a
period of 15 years. These guarantees continue to be met for the Claimants. As a result,
the question of the Respondent breaching its guarantees does not arise.308
306
Reply, §280.
307
SoC, §218. See also Reply, §277.
308
To the extent relevant, the Tribunal notes that both the introduction of the Solar Levy as well as the
withdrawal of the Tax Incentives were reasonable.
124
F. UMBRELLA CLAUSE
1. The Claimants’ Position
452. The Claimants submit that, pursuant to Article 7(2) of the Treaty, the Respondent is
under an obligation to comply with its contractual and statutory obligations. By
abrogating and circumventing the guarantees given in Act 180, the Respondent has
breached such obligations.309
453. For the Claimants, the wording of Article 7(2) of the Treaty is clear. It applies to both
contractual and statutory commitments of the Respondent. This is all the more evident
when one looks at the language, which speaks of other obligations “entered into with
regard to investments in its territory by investors”, which only requires that the
Respondent’s obligations relate to investments. It does not require that such
obligations be entered into with a particular investor. This interpretation is supported by
Article 7(1) of the Treaty, which identifies legal obligations under domestic law as a
potential source of obligations.
454. The Claimants dispute the Respondent’s argument according to which, read with
Article 7(1), Article 7(2) is limited to contractual obligations. They contend that Article
7(1) is a “conflict clause” that “regulates conflicts between – potential conflicts between
the Treaty and national laws which have treatment in line with the Treaty but which is
more favorable or conflicts between the treaty and other treaties which are more
favorable”.310
Article 7(1) and 7(2) thus address different issues. Furthermore, the
Claimants emphasize that Article 7(2) refers to “any” other obligation, which shows that
statutory obligations fall under Article 7(2) of the Treaty.
455. In addition, the Claimants challenge the Respondent’s view that the umbrella clause
only applies to a specific obligation vis-à-vis an investor or to an obligation relating to
an individual investment. According to them, the umbrella clause applies whenever a
statutory commitment is made to induce investments. Article 7(2) in particular applies
in respect of obligations “entered into with regard to investments”. In any event, even
accepting the Czech Republic’s position, by granting the ERO licenses, the
Respondent entered into a specific obligation with regard to the Claimants’
309
SoC, §170.
310
Tr. (Day 4) 609:5-10.
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investments. According to the Claimants, “Section 6(1)(b)(2) of Act 180/2005 is the
functional equivalent of an offer. It’s not made directly an offer to conclude a contract
because Respondent chose to regulate renewables differently, but nevertheless it is an
offer made to investors because it’s not valid immediately for everyone […] you first
have to fulfill certain conditions”.311
456. The Claimants further reject the Respondent’s position that the impugned measures
cannot constitute a breach of the umbrella clause because the Respondent was
“entitled” to change its laws. They assert that the umbrella clause would be deprived of
meaning if a state could simply change its laws. According to the Claimants, “what is
crucial is whether the State lawfully invokes the law as it existed at the time of
investment – or whether it changes the law subsequently in order to escape its
obligations. In the former case, there is no breach of the umbrella clause. In the latter
case, and in the case at hand, there is such a breach”.312
457. Moreover, the Claimants deny that the Constitutional Court settled the issue, as the
Court undertook a limited review and did not address individual cases.
458. Finally, for the Claimants, the legal authorities invoked by the Respondent are
irrelevant because they merely distinguish contractual obligations from “general
commitments” or “general requirements” under domestic law. The authorities do not
consider “whether specific guarantees for a specific period given in a law qualify as an
obligation in terms of the given umbrella clause”.313
2. The Respondent’s Position
459. The Respondent submits that Article 7(1) of the Treaty contains the words “legislation”
as well as “obligations”. If the Contracting Parties had meant the term “obligations” to
include “legislation”, they would not have used two different terms in Article 7(1). Doing
so, they showed that the term “obligations” used in Article 7(2) of the Treaty cannot be
understood to include “legislation”. This is further demonstrated by the use of the word
“other” in Article 7(2), which excludes “legislation” identified in Article 7(1).
311
Tr. (Day 4) 615:18-24.
312
Reply, §§212-213.
313
Reply, §167.
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460. According to the Respondent, the obligations allegedly breached must first exist under
Czech law. The Claimants have failed to identify any relevant obligation. In particular,
the Claimants have not shown “that they ha[ve] either a vested or actionable right to:
(1) freedom from any measures that would affect a solar plant’s excess profits but
leave intact the targeted profitability benchmarks and tariff levels; and (2) freedom from
any changes at all to the Income Tax Provisions (either for a particular period of time,
or indefinitely”).314
461. The Respondent further argues that, even if Article 7(2) of the Treaty were to apply to
the breach of a statutory provision, such provision should be directed to specific
investments and investors. Here, the Claimants have identified Act 180 as the only
source of the obligations which the Czech Republic entered into with respect to their
investments. Yet, Act 180 was neither directed specifically to the Claimants, nor to their
investments. Section 6 of Act 180 was merely a direction given to the regulator, namely
to the ERO.
462. The Respondent finally asserts that, even assuming that obligations under general
Czech law were covered by Article 7(2), the Claimants must establish that these
obligations were breached, which they have not done. In addition, the alleged breach
of a statutory provision must be assessed “in the context of the legal order of which it
forms a part”315
. As the Constitutional Court and the Supreme Administrative Court
have both held that the Czech Parliament did not breach Act 180, it would be incorrect
to consider that the Respondent breached Article 7(2) of the Treaty by introducing the
Solar Levy.
3. Analysis
463. Article 7 of the Treaty reads as follows:
“(1) If the legislation of either Contracting State or international
obligations existing at present or established hereafter between the
Contracting States in addition to this Treaty contain any provisions,
whether general or specific, entitling investments by investors from the
other Contracting State to a treatment more favourable than is provided
for by this Treaty, such provisions shall prevail over this Treaty to the
extent that they are more favourable.
314
Rej. §425.
315
SoD, §240.
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(2) Each Contracting State shall fulfil any other obligations it may have
entered into with regard to investments in its territory by investors from
the respective other Contracting State”.316
464. Article 7(2) of the Treaty imposes an obligation on each Contracting Party to fulfill its
“other obligation[s]” with regard to investments. If a Contracting Party does not fulfill its
obligations, an investor may claim a breach of Article 7(2) of the Treaty. In other words,
for Article 7(2) to come into operation, the Contracting Party must first be obliged to do
something. If there is no obligation, a fortiori, there can be no breach. In the words of
the Oxus Gold tribunal:
“For a claim to be based on an umbrella clause […] the claimant must
establish, among others, that it is the creditor of the “obligation” at stake
and this requirement has two aspects:
First of all, the obligation which is alleged to be breached must exist. If
the obligation brought forward by the claimant does not exist, it can a
fortiori not be breached.”317
465. The Claimants submit that “[t]he 20-year fixed feed-in tariff established by Act
180/2005 and Public notices 150/2007 as well as the tax exemption constitute
“obligations” covered by Article 7(2) BIT.”318
However, the Tribunal has already held
that Act 180 imposes no obligation on the Czech Republic to set or retain the FIT at a
level above that which allows a 15 year payback of capital expenses and a 7% return
for solar RES producers that met prescribed conditions. The Tribunal has also held
that the Respondent was not obliged to maintain the Tax Incentives as they existed at
the time of the Claimants’ investment. Consequently, in the absence of an obligation of
the Respondent, the claim for breach of such (non-existing) obligation must fail.
Accordingly, the Claimants’ umbrella clause claim is dismissed.
466. In closing, the Tribunal notes that the decision in Invesmart v. Czech Republic also
dismissed the umbrella clause claim on the basis that the claimant had not established
the existence of an obligation of the Czech Republic to provide state aid.319
316
Exh. C-078, Art. 7. The translation offered by the Respondent is substantially similar: “Each
Contracting Party shall fulfil any other obligations it may have entered into with regard to investments
in its territory by investors from the respective other Contracting Party.” SoD, §216. In any event, the
Respondent seems to accept the Claimants’ translation. See Rej., §418.
317
Oxus Gold plc v. Republic of Uzbekistan, UNCITRAL, Final Award, 17 December 2015, §§366-
367.
318
SoC, §179.
319
Invesmart, §526 ("The Tribunal is of the opinion that the claim founded on Article 3(4) of the BIT
cannot succeed. Even if the existence of an "umbrella clause" elevates breaches of a contract to
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G. CONCLUSION
467. On the basis of the foregoing analysis, the Tribunal reaches the conclusion that the
Respondent did not breach the substantive standards invoked by the Claimants, i.e.
FET, FPS, and the umbrella clause.
468. Having reached the conclusions above, the Tribunal need not decide on the
Respondent’s arguments that “even if Claimants succeed to persuade the Tribunal on
issues of liability, the Tribunal would still be precluded under the applicable EU law
from rendering a binding damages award in Claimants’ favor”.320
469. In reaching this conclusion, the majority has considered the content of the dissenting
opinion. Expressed in no uncertain terms, the dissenter’s arguments have given the
majority the opportunity to test the resilience of its legal analysis and the validity of its
conclusions. Having revisited its views in light of the dissent, the majority cannot but
confirm the result of its analysis, according to which the Czech Republic guaranteed to
the Claimants (i) a return of their investment or payback of capital expenses in 15
years and (ii) a return on investment or profit of at least 7% p.a. over 15 and later 20
years, which guarantees were met in the present case. This result derives from Section
6 of Act 180 and the implementing regulation to which it refers, and is shared by the
Czech Republic’s highest courts.
breaches of the BIT, a point on which tribunals before and after Eureko have reached opposite
conclusions, or extends beyond contractual breaches, the Claimant has not established that there
was any firm, unconditional undertaking, whether contractual or not, to provide state aid. An
"obligation" to provide aid would require the establishment of a clear, unconditional commitment which
would specify its essential terms including the amount of aid, the date to be provided and so on. No
such obligation has been proven by the Claimant.").
320
Respondent’s Comments on the Amicus Curiae Submission, §42. The Commission made similar
arguments (Commission’s Application, §§186 et. seq.), which need not be addressed for the same
reasons.
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the arbitration amount to EUR . The PCA will shortly provide the Parties with
a final statement of account.
475. As a consequence, the total of arbitration costs amounts to EUR rounded
to EUR .
476. The Claimants request the Tribunal to order the Respondent to bear the Claimants’
costs for legal representation and assistance of EUR , while, on their part,
the Respondent insists that the Claimants should bear the Respondent’s costs of
USD and EUR .
477. As mentioned above, this is an ad hoc investment arbitration governed by the
procedural rules contained in the Treaty and Chapter 12 of the PILA. Article 10(2) of
the Treaty provides that the procedural rules contained in Article 9(5) of the Treaty in
respect of interstate disputes “appropriately” apply in investor-states cases. Article 9(5)
provides the following guidance regarding costs:
“Each Contracting Party shall bear the cost of its own member of the
tribunal and of its representation in arbitration proceedings; the cost of
the chairman and the remaining costs shall be borne in equal parts by the
Contracting Parties. The arbitral tribunal may decide on a different
allocation of costs.”
478. Article 9(5) of the Treaty applies if the Parties have not agreed otherwise. The
coincidence that each Party claims that its opponent should bear the costs of the
arbitration cannot be regarded as a meeting of the minds to deviate from the solution
agreed by the Contracting States. Noting that Chapter 12 of the PILA contains no
guidance on cost allocation either, the Tribunal considers that the Treaty governs the
cost allocation.
479. Article 9(5) means that, in addition to the costs which it incurred in connection with the
arbitration, each side bears (i) 50% of the fees of the President of the Tribunal; (ii) 50%
of all costs and expenses of the arbitration (which includes the fees and expenses of
the institution and of the Secretary); and (iii) 100% of the fees of the arbitrator whom it
appointed. Article 9(5) also empowers the Tribunal to apply a different allocation, for
which the Tribunal sees no reason under the circumstances.
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480. Accordingly, in application of the BIT and taking into account the caps agreed with the
Parties, the Claimants shall bear, in addition to their own legal fees and other
expenses, the following costs:
(i) 50% of the president's fees, i.e. EUR ;
(ii) 100% of its party-appointed arbitrator's fees, i.e. EUR and
expenses of EUR .
(iii) 50% of all other expenses, comprising EUR (Secretary's fees),
EUR (PCA fees), EUR (President and Secretary’s
expenses) and other expenses of EUR .
Total: EUR , rounded to .
481. As for the Respondent, it shall bear, in addition to its own fees and expenses, the
following costs:
(i) 50% of the president's fees, i.e. EUR ;
(ii) 100% of its party-appointed arbitrator's fees, i.e. EUR and
expenses of EUR ;
(iii) 50% of all other expenses, as set out in subparagraph 480 (iii);
Total: EUR , rounded to .
482. Each side has advanced EUR on account of fees and expenses. From such
deposits, the PCA shall pay the fees and expenses of the Arbitrators, the Secretary
and its own fees and costs, in accordance with the provisions of the BIT, as
implemented above. The remaining balance of EUR shall be returned to the
Respondent.
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VII. DECISION
483. For the reasons set forth above, the Tribunal:
i. Decides that it has jurisdiction over Claimant 4 JSW Solar (zwei) GmbH & Co.
KG;
ii. Decides that the Respondent has not acted in breach of Articles 2(1), 4(1) or
7(2) of the Treaty between the Federal Republic of Germany and the Czech
and Slovak Federal Republic on Encouragement and Reciprocal Protection of
Investments of 2 October 1990;
iii. Fixes the costs of the arbitration at EUR ;
iv. Decides that the Claimants shall pay EUR for the costs of the
proceedings;
v. Decides that the Respondent shall pay EUR for the costs of the
proceedings;
vi. Decides that each Party shall bear the costs of its legal representation and
other expenses incurred in connection with this proceeding; and,
vii. Dismisses all other claims.