The decision of the US Court of Appeals for the District of Columbia in joined cases NextEra Energy Global Holdings B.V. and NextEra Energy S Pain Holdings B.V. v. Kingdom of Spain, and 9REN Holding S.A.R.L. v. Kingdom of Spain, confirms that national courts are not prevented from recognizing and enforcing intra-EU ICSID arbitral awards. While some issues raised by the parties could have been conclusively determined by the Court, the value of the decision cannot be diminished. In fact, the decision validates the significance of the ICSID Convention and of the original commitment of the drafters of the Convention to the final and binding nature of the ICSID arbitral awards. Moreover, the decision confirms that the intra-EU development which has generated a ‘complex international puzzle’ does not weaken the reality that the overall rate of voluntary compliance and post-award settlement of ICSID awards is of 90%, with a further 7% of awards being satisfied following successful enforcement proceedings.

A discussion on the right of the state to regulate in the public interest and the transition to a cleaner energy can only occur when it is understood that, on one hand, there will be a greater role of the state during the energy transition, and that, on the other hand, there will also be a greater need for private capital. As a result of the November 2022 Sharm el-Sheikh Climate Change Conference (COP 27), the Sharm el-Sheikh Implementation Plan recognises that there is an ‘urgency to rapidly transform energy systems … including by accelerating clean and just transitions to renewable energy’. However, it also accepted the reality that ‘USD 4 trillion per year needs to be invested in renewable energy up until 2030 to be able to reach net zero emissions by 2050, and that, furthermore, a global transformation to a low-carbon economy is expected to require investment of at least USD 4–6 trillion per year’.

This chapter focuses on the future of investor--State arbitration arising out of energy construction projects. It stresses the importance of investments in sustainable energy infrastructure for the transition to clean energy. It further analyses factors that make such investments particularly prone to disputes. Consequently, the chapter argues for their continuous protection through international investment agreements. In this context, the chapter discuses the recent controversies surrounding the Energy Charter Treaty.

This chapter addresses the fluid topic of the modernisation of the Energy Charter Treaty (ECT). The process was concluded in 2022, with the successful agreement in principle of the Contracting Parties to the ECT to align the outdated provisions of the treaty with the goals of a transition to clean energy, as well as to address the concerns with the interpretation of certain provisions of the treaty by investment arbitral tribunals. Although the conclusion of the modernisation process was announced as a success, particularly given the upfront opposition to the reform of certain Contracting Parties, such as Japan, the latest developments have highlighted an increased dissatisfaction among the European Union (EU) Member States with this process. In 2023, Poland, France and Germany officially submitted their notification of withdrawal from the ECT. Furthermore, the European Commission has proposed to the European Parliament the coordinated withdrawal from the ECT of the EU, the European Atomic Energy Community and the EU Member States. One can conclude that the ECT is undoubtedly, experiencing interesting times. 

With limited literature addressing the relevance of facts, as opposed to legal questions, this chapter addresses the current investment arbitration case law, including at the stage of the annulment of arbitral awards. One of the findings of the research emphasizes that ascertaining the facts of the case is even more important where a number of cases arise out of the same or similar conduct of the host state of the investment, such as in the cases against Argentina and, more recently, Spain. At the annulment stage of the arbitral awards, the facts of the case can become relevant in the context of Article 52(1)(e) of the ICSID Convention, if the award has failed to state the reasons on which it is based.

With limited literature addressing the relevance of facts, as opposed to legal questions, this chapter addresses the current investment arbitration case law, including at the stage of the annulment of arbitral awards. One of the findings of the research emphasizes that ascertaining the facts of the case is even more important where a number of cases arise out of the same or similar conduct of the host state of the investment, such as in the cases against Argentina and, more recently, Spain. At the annulment stage of the arbitral awards, the facts of the case can become relevant in the context of Article 52(1)(e) of the ICSID Convention, if the award has failed to state the reasons on which it is based. 

The article addresses the recent trends in investment arbitration, focusing on the evolution of international investment agreements from the perspective of the right of the States to regulate in public interest, as well as of the provisions concerning environment, health, and corporate social responsibility. These issues have been chosen because they highlight areas where the tension between sovereign and private interests is evident, as well as where States often face resistance in implementing public policy. Furthermore, the discussion is opportune as the mandate entrusted to the UNCITRAL Working Group III concerned with investor-State dispute settlement reform is limited to procedural aspects of such reform, leaving to the discretion of the States, as treaty-makers, the regulation of the substantive issues concerning foreign investments. The analysis of the international investment agreements concluded between January 2018 and December 2020 demonstrates that treaty language is constantly evolving to protect and expand the scope of States’ regulatory autonomy. The article concludes that investor-State dispute settlement remains the framework in which environmental, human rights and corporate social responsibility obligations can be smoothly integrated within the international investment law, allowing both States and investors to take advantage of and be held accountable for their respective obligations.

The costs of in-house counsel participation in international arbitration are considered as an inherent cost of the parties in the proceedings. Moreover, when a party is represented by external counsel, it is assumed that the arbitration-related work is fully outsourced and reflected in the legal fees incurred by the parties. Building on the ICC Commission on Arbitration and ADR Report, this article reviews the ICC arbitral awards rendered between 2002 and 2021 that address the recoverability of in-house counsel costs. Should in-house counsel costs be covered by the broad wording of Article 38(1) of the 2021 ICC Arbitration Rules ’reasonable legal and other costs incurred by the parties for the arbitration’? Are they limitations in awarding such costs? And how should in-house costs be evidenced and quantified? With this study, the author attempts to answer these questions, and identifies some criteria used by arbitral tribunals in awarding in-house costs.