Cashing-In on the Energy Transition? Assessing Damage Evaluation Practices in Renewable Energy Investment Disputes

Abstract

Damages assessment in investor-State dispute settlement (ISDS) entail major financial, behavioural, and political consequences upon host States. In fact, damages unreflecting the actual value of investments in energy assets can over-induce investments on the investors’ side and curtail host States’ regulatory space against the unfolding climate change crisis. This contribution investigates the practice of ISDS tribunals on damages assessment in cases dealing with the rollback of support schemes for renewable energy infrastructures brought against Italy and Spain. It acknowledges a narrow, yet consistent approach to quantum, which foregoes elements of balancing and equity in applying the general standard of full reparation enshrined under public international law. Hence a change of paradigm is advocated, whereby ISDS tribunals engage deeply with both the inherent elements of renewable energy investments as well as the ongoing regulatory constraints posed by the dire need to adopt more stringent climate policies domestically.