Alcance y fuentes de las expectativas legítimas de los inversores en las sagas de energía renovable españolas e italianas

In the last decade, regulatory changes of the incentives schemes for renewable energy production enacted by several European Member States have been challenged by foreign investors under the Energy Charter Treaty. Spain and Italy’s regulatory changes were among the most disputed. The present contribution conducts a joint assessment of the various awards rendered against the two Member States, and in particular of the different reasonings under the standard of legitimate expectations under the Fair and Equitable Treatment, to try to reach a general understanding of the current application of this standard to domestic public measures, and thus provide some hints on the current development of investment law as applied to the State’s right to regulate. The purpose of this work is not to enter into the merits of any of the awards involving Spain or Italy, but rather to shed some light on the legal theories applied by different arbitral tribunals. The preliminary conclusion reached by the Authors is that, while tribunals are moving towards a better clarification of the scope of legitimate expectations (and thus the States’ right to regulate), unfortunately many inconsistencies that undermine certainty remain.