Photovoltaik Knopf Betriebs v. The Czech Republic, Award, 15 May 2019

LIST OF DEFINED TERMS
AA	Appointing Authority
Achmea judgment	Judgment of the Grand Chamber of the Court of Justice of the European Union in the matter of Slovak Republic v. Achmea BV dated 6 March 2018
2010 Action Plan	National Renewable Energy Action Plan 2010 of the Czech Ministry of Industry and Trade of July 2010
Act on Income Tax	Act No. 586/1992
Act on Promotion	Act No. 180/2005
BIT	Agreement between the Government of the Federal Republic of Germany and the Government of the Czech and Slovak Federal Republic for the Promotion and Protection of Investments of 2 October 1992
Braun Opinion	Due diligence report prepared by bpv Braun Partners dated 27 May 2010
Charter	The Czech Republic's Charter of Fundamental Rights and Freedoms
Claimant or Photovoltaik	Photovoltaik Knopf Betriebs-GmbH
Claimant's Submission on Costs	Claimant's Submission on Costs dated 16 June 2017
CJEU or ECJ	Court of Justice of the European Union
Claimant's Application	Claimant's Application for Leave to Submit a Rejoinder on Jurisdiction and a Supplemental Report on Quantum, submitted by letter dated 11 November 2016
Claimant's Comments on Achmea	Claimant's Comments on the impact of the Achmea judgment on the Tribunal's jurisdiction submitted on 9 June 2018
Claimant's Reply on Achmea	Claimant's Reply on the impact of Achmea on the Tribunal's jurisdiction submitted on 17 December 2018
Claimant's Supplemental Submission on Costs	Claimant's supplemental submission on costs dated 11 January 2019
Counter-Memorial	Respondent's Counter-Memorial dated 15 October 2015
CSR-Netherlands BIT	Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic of 1 October 1992
2001 Directive	Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market
2009 Directive	Directive 2009/28/EC of the European Parliament and the Council of 23 April 2009 on the promotion of the use of energy from renewable sources amending and subsequently repealing Directives 2001/77/EC and 2003/30/E
EC	European Commission
EC's Decision	European Commission's decision in case "SA.40171 (2015/NN) — Czech Republic Promotion of electricity production from renewable energy sources" of 28 November 2016
ECT	Energy Charter Treaty of 16 April 1998
Environmental Aid Guidelines	Guidelines of the EC on environmental aid that are meant to facilitate the assessment of situations in which environmental State measures meet the requirements of the exemption
ERO	Czech Energy Regulatory Office
EUROSOLAR	European Association for Renewable Energy
Explanatory Report	Explanatory Report on the Act on Promotion issued by the Czech Parliament on 12 November 2003
FET	Fair and Equitable Treatment
First Notification	Notification of the Czech Republic concerning the enactment of Act No. 165/2012, submitted to the European Commission on 8 January 2013
FiT	Fixed purchase prices or Feed-in-Tariffs
Government or Respondent	Government of the Czech Republic
Green Bonuses	Green Bonuses
2001 Guidelines	2001 Community Guidelines on State aid for environmental protection
2008 Guidelines	2008 Guidelines on State aid for environmental protection
2014 Guidelines	Guidelines on State aid for environmental protection and energy 2014–2020
Indicative 2010 Target	The Czech Republic's national target for the contribution of electricity produced from RES to the gross electricity consumption by 2010
ILC Draft Articles	International Law Commission Draft Articles on State Responsibility
Incentive Regime	Incentives for RES producers introduced through a combination of tariff and non-tariff mechanisms
27 July 2004 Letter	Commission's letter to EUROSOLAR of 27 July 2004
July 2014 Judgment	Decision of the Supreme Administrative Court, Case No. 9 Afs 13/2013, 10 July 2014
Knĕžmost or SPV	FVE Kněžmost s.r.o. (formely Drobil-Reality s.r.o.), a Czech limited liability company incorporated on 10 January 1995
May 2012 Constitutional Court Judgment	Judgment, Czech Constitutional Court, Case No. Pl. ÚS 17/11, 15 May 2012
Mazars Opinion	Roever Broenner Susat Mazars GmBH & Co. KG's opinion on German tax law
Memorial	Claimant's Memorial (including Response on Jurisdiction) dated 29 June 2015
New Act on Promotion	Act No. 165/2012 Coll., which amended certain arrangements under the Act on Promotion and entered into force partly on 1 January 2013 and partly upon its publication on 30 May 2012
NoA	Claimant's Notice of Arbitration dated 22 April 2014
Non-Impairment Standard	Prohibition of arbitrary and discriminatory treatment
PCA or Registry	Permanent Court of Arbitration
Petitioners	Group of Czech senators who brought a challenge to the Czech Constitutional Court, seeking the annulment of the measures at issue
Photovoltaik	Photovoltaik Knopf Betriebs-GmbH
Pricing Regulation	ERO Regulation No. 140/2009 Coll.
Rejoinder	Respondent's Rejoinder dated 6 October 2016
Rejoinder on Jurisdiction	Claimant's Rejoinder on Jurisdiction dated 10 January 2017
Reply	Claimant's Reply Submission (including Rejoinder on Jurisdiction) dated 6 April 2016
RES	Renewable energy sources, including photovoltaic plants
RES Regime	The Czech Republic's regime for renewable energy sources
Respondent's Comments on Achmea	Respondent's Comments on the impact of the Achmea judgment on the Tribunal's jurisdiction submitted on 17 May 2018
Respondent's Reply on Achmea	Respondent's Reply on the impact of Achmea on the Tribunal's jurisdiction submitted on 3 December 2018
Respondent's Submission on Costs	Respondent's Submission on Costs dated 17 June 2017
Respondent's Targeted Requests	Respondent's Application for Leave to Make Further Targeted Requests for Production of Documents submitted on 17 July 2015
Respondent's Updated Submission on Costs	Respondent's Updated Submission on Costs dated 11 January 2019
Response	Respondent's Response to the Notice of Arbitration dated 23 May 2014
5% rule or 5% limitation	Rule under Article 6(4) of the Act on Promotion pursuant to which the ERO was not allowed to decrease the FiT in any given year by more than 5% of the value of the FiT in the previous year
Second Notification	Second notification of the RES support mechanisms in respect of RES plants commissioned before 1 January 2013 filed by the Czech Republic with the European Commission on 11 December 2014
Subsidies or Tariffs	FiT and Green Bonuses
TAL	Tax Administration Law
2020 Target	The Czech Republic's Target for the contribution of electricity produced from RES by 2020
Tax Holiday	Exemption of RES producers from corporate income tax for the year in which the respective facility was put into operation and the following five calendar years pursuant to the Act on Income Tax
Technical Regulation	ERO Regulation No. 475/2005 Coll.
TFEU	Treaty on the Functioning of the European Union
Tomsan	Tomsan s.r.o.
UNCITRAL Rules	Arbitration Rules of the United Nations Commission on International Trade Law of 1976
WACC	Weighted average cost of capital
1995 White Paper	White Paper on the "Energy Policy for the European Union" of December 1995

DRAMATIS PERSONAE
Ms. Kelyn Bacon QC	Respondent's expert witness on EU State aid issues, barrister at Brick Court Chambers.
Mr. David Borkovec	Claimant's expert witness on the issue of whether the Solar Levy is a tax under Czech law, Lead Tax Partner at PricewaterhouseCoopers Česká republika, s.r.o.
Mr. Josef Fiřt	Respondent's fact witness, Chairman of the Czech Republic's ERO from September 2004 to July 2011.
Mr. Libor Frýzek	Claimant's expert witness on the issue of whether the Solar Levy is a tax under Czech law, Head of Tax, Ernst & Young, s.r.o.
Dr. Antón García	Claimant's expert witness on the EU RES support framework and issues pertaining to industry economic regulation, Vice President in Compass Lexecon's European energy practice.
Mr. Radek Halíček	Respondent's expert witness on the issue of whether the Solar Levy is a tax under Czech law, Senior Tax Partner, KPMG, who withdrew from engagement with the Respondent, and did not participate in the hearing.
Mr. Wynne Jones	Respondent's expert witness on the EU RES support framework and issues pertaining to industry economic regulation, Director of Frontier Economics.
Mr. Richard Knopf	Claimant's fact witness, managing director and beneficial owner of Photovoltaik Knopf Betriebs-GmbH.
Dr. Petr Kotáb	Respondent's expert witness on the issue of whether the Solar Levy is a tax under Czech law, Assistant Professor at the Charles University Law School, and practicing attorney at Dentons.
Mr. Ladislav Minčič	Respondent's fact witness, First Deputy Minister of Finance of the Czech Republic from 2010 to 2014.
Mr. Michael Peer	Respondent's expert witness on the calculation of damages, accountant and partner at KPMG.
Mr. Conor Quigley QC	Claimant's expert witness on EU State aid issues, barrister at Serle Court.
Mr. Geoffrey Senogles	Claimant's expert witness on the calculation of damages, chartered accountant and Vice President at Charles River Associates.
Dr. Pablo T. Spiller	Claimant's expert witness on the EU RES support framework and issues pertaining to industry economic regulation, Senior Consultant at Compass Lexecon.

1.

The Claimant in the present arbitration is Photovoltaik Knopf Betriebs-GmbH ("Photovoltaik", or the "Claimant"), a company incorporated under the laws of Germany, with its registered address in Pucherstrasse 3, D-82256 Furstenfeldbruck, Germany. The Claimant is represented in these proceedings by Prof. Luca G. Radicati di Brozolo, Avv. Michele Sabatini, Mr. Emilio Bettoni, and Mr. Flavio Ponzano of ARBLIT-Radicati di Brozolo Sabatini Benedettelli, Via Alberto da Giussano, 15, 20145 Milan, Italy.

2.

The Respondent is the Government of the Czech Republic, a sovereign State (the "Government", or the "Respondent", and together with the Claimant, the "Parties"). The Respondent is represented in these proceedings by Mr. Paolo Di Rosa of Arnold & Porter LLP, 601 Massachusetts Avenue NQ, Washington, D.C. 20001-3743, United States; Mr. Dimitri Evseev of Arnold & Porter LLP, Tower 42, 25 Old Broad Street, London EC2N 1HQ, United Kingdom; Ms. Karolína Horáková and Libor Morávek of Skils s.r.o. advokátní kancelár, Křižovnické nam. 193/2 110 00 Prague 1, Czech Republic; and by Ms. Marie Talašová, Ministry of Finance of the Czech Republic.

3.

The proceedings arise out of an investment made by the Claimant in the photovoltaic sector in the Czech Republic. A dispute has arisen between Photovoltaik and the Government in respect of the alleged cancellation of the legal, tax, and regulatory incentive regime that had previously been established by the Czech Government in the photovoltaic sector.

4.

The Claimant has commenced arbitration pursuant to the Agreement between the Government of the Federal Republic of Germany and the Government of the Czech and Slovak Federal Republic for the Promotion and Protection of Investments of 2 October 1992 (the "BIT"), and the Energy Charter Treaty of 16 April 1998 (the "ECT").

5.

On 8 May 2013, the Claimant, together with nine other investors, jointly filed a single Notice of Arbitration for a multi-party arbitration.

6.

The Claimant designated Prof. Luca Radicati di Brozolo and Mr. Michele Sabatini of Bonelli Erede Pappalardo Studio Legale (Milan) as its lead counsel. While these attorneys left Bonelli Erede Pappalardo Studio Legale and established ARBLIT in October 2013, they have been serving as counsel for the Claimant throughout the proceedings.

7.

The Respondent initially designated Professor Zachary Douglas (Matrix Chambers), Mr. David W. Alexander (Squire Sanders (US) LLP, Columbus), Mr. Stephen P. Anway (Squire Sanders (US) LLP, New York) and Ms. Karolina Horáková (Weil, Gotshal & Manges LLP, Prague) as its counsel. At a later stage of the proceedings, Professor Zachary Douglas withdrew from the representation, and Mr. David W. Alexander and Mr. Stephen P. Anway were replaced by Mr. Paolo Di Rosa (Arnold & Porter LLP, Washington DC) and Mr. Dimitri Evseev (Arnold & Porter (UK) LLP, London) (see paragraphs 59 and 61). Ms. Horáková's law firm changed its business name to Skils s.r.o. advokátní kancelář.

8.

On 10 June 2013, the Respondent replied to the Claimant, noting that they understood the Notice of Arbitration to be an invitation to consent to the consolidation of the claims. The Respondent proceeded to split the proceedings into six different arbitrations, and appointed Judge Peter Tomka, Mr. J. Christopher Thomas QC, and Mr. Toby Landau QC as its party-nominated arbitrators.

9.

On 24 June 2013, the Claimant wrote to the Respondent stating that this was a multi-party arbitration and not a case of consolidation.

10.

On 27 June 2013, the Respondent wrote to the Claimant, challenging this classification, stating that there is "no single arbitration agreement in existence that is capable of extending to all the different claims based upon different treaty obligations in different international instruments."

11.

On 5 July 2013, the Claimant requested the Secretary-General of the Permanent Court of Arbitration (the "PCA" or "Registry") to designate an appointing authority ("AA") pursuant to Article 6(2) of the United Nations Commission on International Trade Law Arbitration Rules as revised in 2010, to complete the constitution of a single arbitral tribunal and to proceed to take a decision on the competence of the tribunal, in light of the lack of agreement between the Parties.

12.

On 9 July 2013, by a letter to the PCA Secretary-General, the Respondent challenged the Claimant's request to designate an AA, alleging that in the present case, no power had been conferred on the Secretary-General under the Rules to make arbitral appointments. The Respondent further argued that the Notice of Arbitration was invalid, because it invoked the 2010 UNCITRAL Arbitration Rules instead of the 1976 UNCITRAL Arbitration Rules. The Respondent stressed that "there is no single arbitration agreement in existence that could possibly give a single arbitral tribunal authority over all the 10 claimants, their alleged investments, and their claims under the distinct international instruments."

13.

By the Respondent's letter of 9 July 2013 and the Claimant's letter of 22 July 2013, the Parties agreed that the present arbitration shall be governed by the Arbitration Rules of the United Nations Commission on International Trade Law of 1976 (the "UNCITRAL Rules").

14.

On 13 August 2013, the Secretary-General declined to act upon the Claimant's request, owing to the lack of a basis under the UNCITRAL Rules justifying the Secretary-General's intervention. This was because first, appointing authorities had been agreed in advance in some of the instruments invoked by the Claimant, and secondly, because the Respondent had actively participated in the proceedings and responded to the Notice of Arbitration in a timely manner by appointing the second arbitrator.

15.

On 8 May 2013, the Claimant appointed Mr. Raymond Doak Bishop as the first arbitrator.

16.

On 10 June 2013, the Respondent appointed Mr. Toby Landau QC as the second arbitrator.

17.

On 17 March 2014, the co-arbitrators appointed Professor Hans van Houtte as the President of the Tribunal, thereby duly constituting the Tribunal.

18.

On 1 August 2014, having learned that his firm had been recently engaged in other matters that potentially involved issues similar to those in this arbitration, and citing grounds of a perception of bias, Mr. Doak Bishop tendered his resignation from the Tribunal.

19.

On 5 August 2014, the Claimant was requested to appoint a new arbitrator to replace Mr. Bishop as a Tribunal member, pursuant to Articles 7(1) and 13(1) of the UNCITRAL Rules. The Tribunal suspended the proceedings until the appointment of a new co-arbitrator.

20.

On 24 September 2014, the Claimant appointed Mr. Gary Born as its party-nominated arbitrator.

21.

On 22 April 2014, the Claimant submitted its individual Notice of Arbitration to the Respondent. This date is deemed as the formal date for the commencement of the present proceedings pursuant to Article 3(2) of the UNCITRAL Rules. In its Notice of Arbitration, the Claimant proposed Geneva, Switzerland as the legal seat of the present arbitration, but indicated that it would also accept Paris, France as the legal seat of arbitration in the event that the Tribunal selected a seat of arbitration within the European Union.

22.

On 23 May 2014, the Respondent submitted a Response to Claimant's Notice of Arbitration by which it raised its objections to jurisdiction, and set out its version of the factual background to the dispute. In addition, the Respondent proposed Paris, France as the legal seat of the present arbitration.

23.

On 15 July 2014, by Procedural Order No. 1, the Tribunal established that the place of arbitration would be Paris, France.

24.

On 20 October 2014, the Claimant submitted its Motion to Transfer the Seat of Arbitration, from Paris to Geneva, citing the request of the European Commission for leave to intervene, as well as actions taken by it and EU courts in other unrelated arbitrations as presenting grounds for transferring the seat of arbitration to a non-EU country.

25.

On 12 November 2014, the Respondent submitted its objections to the Claimant's Motion to Transfer the Seat of Arbitration, raising the absence of reasons compelling a change of the seat.

26.

On 27 February 2015, in its Procedural Order No. 2, the Tribunal ordered that the place of arbitration shall be Geneva, Switzerland.

27.

On 11 July 2014, the European Commission (the "EC") submitted an Application for Leave to Intervene as a Non-Disputing Party.

28.

On 15 July 2014, in its Procedural Order No. 1, the Tribunal, with the agreement of the Parties, appointed the Permanent Court of Arbitration as the administering authority in the proceedings. By the same order, the Tribunal set out the procedural timetable applicable to the proceedings.

29.

Procedural Order No. 1 contained the following provision on confidentiality:

"Either Party may publicly disclose submissions made in these proceedings unless there has been a decision by the Tribunal to the contrary. Requests for confidential treatment of any item communicated in these proceedings may be submitted by either Party to the Tribunal for a decision, in which case no item which is the subject of such request may be publicly disclosed unless and until the Tribunal has decided upon such application."

30.

On 17 July 2014, the Claimant submitted its comments on Procedural Order No. 1, including an objection to the confidentiality provisions, on the grounds that "the issue of confidentiality ha[d] not been discussed or agreed upon by the Parties", nor had there been any agreement on the applicability of the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitrations. The Claimant also raised the point regarding the choice of seat of arbitration in a European country, highlighting that the Respondent had waived the "Intra-European Union BIT objection", and stating that the Commission's objection on this ground raised "serious doubts as to the transparency of the Respondent's behaviour."

31.

On 30 July 2014, the Tribunal invited the Respondent to address by 8 August 2014 the Claimant's letter of 17 July 2014, asking it to "specifically elaborate[e] on the possible inconsistency with confidentiality obligations in related matters and on its possible public law obligations of transparency that may be applicable." The Tribunal also invited the Claimant to submit its response, by 18 August 2014, to the Respondent's submission and to the Respondent's letter of 29 July 2014. The Tribunal stressed that confidentiality should be maintained until the Tribunal decided on the matter.

32.

On 8 August 2014, the Respondent stated that due to the suspension of proceedings by virtue of Mr. Doak Bishop's resignation from the Tribunal, it would submit its response to the Claimant's letter of 17 July 2014, as soon as the proceedings were reinstituted.

33.

On 11 August 2014, the President of the Tribunal advised that the Respondent's response should be submitted within one week of the appointment of the new arbitrator.

34.

On 26 September 2014, following the appointment of Mr. Gary Born as the Claimant-appointed arbitrator, the Tribunal notified the Parties of the resumption of proceedings, and set the new date for submissions on the request from the EC for Leave to Intervene as 3 October 2014.

35.

On 3 October 2014, the Respondent provided its response to the Claimant's letter of 17 July 2014.

36.

On 7 October 2014, the Tribunal invited the Claimant to submit its comments on the EC's Application for Leave to Intervene by 20 October 2014. The Tribunal also ordered that the "Simultaneous Cross-Requests for Production of Documents", which were originally due by 20 August 2014, would now be due by 27 October 2014.

37.

On 20 October 2014, the Claimant submitted its Comments on the EC's Intervention.

38.

By Procedural Order No. 2, dated 27 February 2015, and pursuant to Article 15(1) of the UNCITRAL Rules, the Tribunal (with a Concurring Opinion from Mr. Gary Born) granted the EC leave to intervene as amicus curiae, subject to the condition that the Commission undertake, prior to consideration of its submissions, to pay in full the reasonable costs of all Parties resulting from the submissions.

39.

On 6 March 2015, the Registry communicated Mr. Gary Born's Concurring Opinion to the Tribunal's Procedural Order No. 2. Mr. Gary Born expressed serious reservations, stating that it is "exceedingly difficult […] fairly to conclude that the Tribunal has the authority, over one party's objections, to permit a non-party to participate in the arbitral process." However, he added that bearing in mind the interest of consistency and predictability in arbitral decisions, he was persuaded to grant the EC leave to intervene, subject to appropriate conditions.

40.

On 8 April 2015, the EC submitted a Written Amicus Curiae Submission.

41.

On 8 April 2015, the EC also submitted an application to vary Procedural Order No. 2, to reconsider the condition concerning the undertakings on costs.

42.

On 9 April 2015, the Tribunal dismissed the EC's application to vary Procedural Order No. 2. The Commission was granted a further opportunity to make the required undertaking on costs by Wednesday, 15 April 2015, and notified that, if the required undertaking was not provided by that date, the EC's amicus curiae submission would be disallowed.

43.

On 14 April 2015, the EC stated that it was not in a position to provide the undertaking as required by the Tribunal. Accordingly, its amicus curiae submissions were disallowed.

44.

On 8 December 2014, the Tribunal enquired whether the Parties would be willing to accept that the Tribunal should be informed of rulings made in the parallel proceedings involving the Respondent (PCA Case Nos. 2013-35 and 2014-1), on issues which also arise in one or more of the four proceedings before the Tribunal.

45.

On 10 December 2014, the Respondent responded to the Tribunal's enquiry, stating that, subject to appropriate undertakings from the Tribunal, it would be prepared to agree to the Tribunal's suggestion.

46.

On 12 December 2014, the Claimant expressed its agreement that the Tribunal may have access to the decisions in the parallel proceedings. The Claimant added that a simple agreement of the Parties was sufficient in the circumstances, and that no further agreements were required.

47.

On 17 December 2014, the Respondent proposed that the Parties in the present proceedings, as well as the nine other claimants in the parallel cases, sign a written agreement "regulating the process of disclosure of the Rulings and the scope of waiver of confidentiality in the other proceedings".

48.

On 27 December 2014, the Claimant sent a draft proposal for a Disclosure Agreement in the parallel proceedings, to the Respondent.

49.

On 6 January 2015, the Respondent submitted its comments on the Claimant's proposal.

50.

On 15 January 2015, the Respondent notified the Tribunal of the Parties' agreed procedures for disclosure regarding the Rulings in PCA Cases Nos. 2013-35, 2014-1, 2014-19, 2014-20, 2014-21 and 2014-22, contained in the Disclosure Agreement.

51.

On 16 January 2015, the Tribunal communicated its general consent to the disclosure of its Rulings in the parallel proceedings on the conditions specified in the Disclosure Agreement.

52.

On 26 January 2015, the arbitral tribunal in PCA Case No. 2013-35 communicated electronic copies of Procedural Order No. 4 of 24 November 2014 and the Concurring Opinion of Mr. Born, to the Tribunal in the present proceedings.

53.

On 27 March 2015, the Parties jointly proposed an amended procedural calendar to the Tribunal, which was approved by the Tribunal on 30 March 2015.

54.

On 5 May 2015, the Claimant submitted its Request for Document Production, and related documents. It additionally addressed earlier requests for documents that had been opposed by the Respondent, and asked the Tribunal to decide on the Claimant's requests.

55.

On the same date, the Respondent submitted its Application Regarding Document Production, and related documents.

56.

On 19 May 2015, by Procedural Order No. 3, the Tribunal issued rulings with respect to each contested document request. The Tribunal reserved the right to review and change any of its decisions concerning the Parties' present requests at a later stage of the proceedings, if it considered that the documents concerned were relevant and material to its determinations.

57.

On 12 June 2015, the Parties agreed to a revision of the procedural calendar, and submitted it to the Tribunal.

58.

On 29 June 2015, the Claimant submitted its Memorial (including Response on Jurisdiction) (the "Memorial") and accompanying documents.¹

59.

By e-mail dated 1 July 2015, the Respondent gave notice that Professor Zachary Douglas had withdrawn as counsel from the proceedings.

60.

On 17 July 2015, the Respondent submitted its Application for Leave to Make Further Targeted Requests for Production of Documents ("Respondent's Targeted Request").

61.

By letter dated 17 July 2015, which was received on 18 July 2015, the Respondent notified the Tribunal of its change of lead counsel, appointing Paolo Di Rosa (Arnold & Porter LLP, Washington DC) and Dimitri Evseev (Arnold & Porter (UK) LLP, London) to represent the Respondent in the present proceedings.

62.

On 5 August 2015, the Tribunal approved the Parties' request of 12 June 2015 to revise the procedural calendar.

63.

On 10 August 2015, the Respondent submitted its Application Regarding Document Production, addressing the disputed issues related to the Respondent's Targeted Requests of 17 July 2015.

64.

On 6 October 2015, the Tribunal granted the Parties' requested extension to submit the Counter-Memorial on 14 October instead of 12 October 2015.

65.

On 15 October 2015, pursuant to the procedural calendar, the Respondent submitted its Counter-Memorial and accompanying documents.²

66.

On 15 October 2015, the President acknowledged receipt of the Respondent's submission, and made a disclosure relating to Ms. Bridey McAsey, a member of the Respondent's counsel team. The President suggested the removal of Ms. McAsey from the Respondent's legal team in order to confirm the independence of the Tribunal.

67.

On 16 October 2015, Counsel for the Respondent confirmed that Ms. McAsey had been removed from the Respondent's legal team for the present proceedings.

68.

On 2 November 2015, the Parties communicated a revised procedural calendar to the Tribunal.

69.

On 25 November 2015, the Claimant submitted its further document requests in the form of a completed Redfern Schedule, and sought a decision from the Tribunal on the disputed requests raised by the Respondent's objections of 4 November 2015.

70.

On 2 December 2015, the Claimant submitted an "unsolicited submission", in order to draw the Tribunal's attention to Price Decision No. 5/2015 of the Czech Energy Regulatory Authority, stating that this decision "has direct and fundamental consequences for the cases before this Arbitral Tribunal in terms of cause of action, jurisdiction, damages and relief sought". Accordingly, the Claimant sought an extension to the dates for filing of submissions.

71.

On 3 December 2015, by Procedural Order No. 4, the Tribunal issued its decision on the Claimant's further targeted requests for the production of documents. The Tribunal set out its rulings with respect to each contested request in the "Tribunal's Comments" column of the Redfern Schedule, attached as Annex I to Procedural Order No. 4.

72.

On 8 December 2015, the Respondent challenged the Claimant's submission of 2 December 2015, alleging that the submission was "calculated to prejudice the Tribunal against Respondent's position on document disclosure issues".

73.

On 9 December 2015, the Respondent submitted documents pursuant to Procedural Order No. 4. It also asked the Tribunal to confirm the Claimant's obligations to maintain the confidentiality of the documents and "not disclose them publicly or to parties in other proceedings."

74.

On 10 December 2015, the Claimant informed the Tribunal of the Parties' agreements to vary the existing procedural calendar which would inevitably affect the agreed hearing date, and requested the Tribunal to indicate its availability for new hearing dates.

75.

On the same date, the Claimant communicated its agreement with the Respondent that documents received in the course of the parallel arbitrations were strictly confidential and must not be publicly disclosed, but made the point that "both Parties must be in the position to use specific documents obtained in these arbitration proceedings also in the parallel cases, if they are relevant and material to the outcome of those cases."

76.

On 15 December 2015, the Tribunal stressed that documents submitted in the present proceedings:

"cannot be disclosed publicly and can neither be referred to and/or be submitted in proceedings other than the [present] four arbitration proceedings […] unless such reference and/or submission is authorized by the proper authorities in those other proceedings, by the law or by common agreement of the Parties involved in those other proceedings."

77.

On 17 December 2015, the Tribunal set the new dates for the hearing as 26 February 2017 to 5 March 2017.

78.

On 30 December 2015, the Parties jointly agreed on a postponement of the deadline for the submission of the Claimant's Reply Submissions until 4 April 2016 and on an equivalent extension of the deadline for the Respondent's Rejoinder until 23 September 2016.

79.

On 6 April 2016, the Claimant submitted its Reply Submission (including Rejoinder on Jurisdiction) (the "Reply"), and accompanying documents.³

80.

On 19 September 2016, the Parties jointly agreed on a postponement of the deadline for the submission of the Respondent's Rejoinder Submissions until 6 October 2015.

81.

On 6 October 2016, the Respondent submitted the Respondent's Rejoinder (the "Rejoinder") and accompanying documents.⁴

82.

By letter dated 11 November 2016, the Claimant applied to the Tribunal for leave to submit a rejoinder on jurisdiction and a supplemental report on quantum. By letter dated 18 November 2016, the Respondent submitted its comments on the Claimant's Application, arguing that it should be denied, except for limited supplemental jurisdictional submissions.

83.

By Procedural Order No. 5, circulated on 29 November 2016, the Tribunal issued its decision on the Claimant's Application, granting the Claimant leave to submit a rejoinder on jurisdiction and a supplemental report on quantum. The Tribunal also granted the Respondent leave to submit a supplemental expert report in response to the Claimant's supplemental expert report.

84.

On 5 January 2017, the Claimant submitted its Rejoinder on Jurisdiction and accompanying documents,⁵ as well as a supplemental expert report on quantum by Mr. Geoffrey Senogles.

85.

On 31 January 2017, the Respondent submitted a supplemental expert report by Mr. Michael Peer in response to the Claimant's supplemental expert report on quantum.

86.

By letter dated 1 February 2017, the Parties jointly requested the Tribunal's leave to submit further exhibits into the factual record of this case, including the EC's decision in case "SA.40171 (2015/NN) — Czech Republic Promotion of electricity production from renewable energy sources" of 28 November 2016 (the "EC's Decision").⁶ By letter dated 8 February 2017, the Tribunal acknowledged and confirmed the Parties' agreement.

87.

On 15 February 2017, the Claimant submitted its Comments on the EC's decision in case SA.40171 (2015/NN) – Czech Republic, and an accompanying document.⁷ On the same date, the Respondent submitted Respondent's Comments on the European Commission's State Aid Decision SA.40171 (2015/NN) of 28 November 2016.

88.

By e-mail dated 16 February 2017, the Respondent notified the Tribunal that it had agreed with the Claimant to submit seven further exhibits into the factual record as exhibits R-417 to R-422, which the Tribunal acknowledged and confirmed.

89.

By e-mail dated 26 February 2017, the Respondent notified the Tribunal that it had agreed with the Claimant to submit the award in WNC Factoring Ltd v. The Czech Republic, PCA Case No. 2013-34, dated 22 February 2017, into the record of the present case as legal authority RLA-348. By e-mail of the same date, the Claimant notified the Tribunal that they had agreed with the Respondent to submit Sections 23, 24 and 25 of the Act No. 586/1992 (the "Act on Income Tax") into the record of the present case as exhibit C-290. By e-mail of the same date, the Respondent notified the Tribunal that it had agreed with the Claimant to submit two further exhibits into the factual record of the present proceedings as exhibits R-423 and R-424.

90.

By e-mail dated 27 February 2017, the Claimant notified the Tribunal that it had agreed with the Respondent to submit two further exhibits into the factual record of the present proceedings as exhibits C-291 and C-292.

91.

By e-mail dated 2 March 2017, the Respondent notified the Tribunal that it had agreed with the Claimant to submit two further exhibits into the factual record of the present proceedings as exhibits R-425 and R-426. By e-mail of the same date, the Claimant notified the Tribunal that it had agreed with the Respondent to submit one additional exhibit into the factual record as exhibit C-293.

92.

Given that there were no contested issues between the Parties and considering the fact that neither insisted on holding the pre-hearing teleconference, the Tribunal cancelled the pre-hearing call.

93.

From 27 February to 3 March 2017, a hearing was held in The Hague. The following individuals were in attendance:

Tribunal:
Prof. Dr. Hans van Houtte (presiding)
Mr. Gary Born
Mr. Toby Landau, QC

The Claimant:
Prof. Luca G. Radicati di Brozolo
Mr. Michele Sabatini
Mr. Flavio Ponzano
Mr. Emilio Bettoni
Ms. Vanessa Zanetti
(ArbLit – Radicati di Brozolo Sabatini)

Mr. Nico Leslie
(Fountain Court Chambers)

Mr. Michal Hrabovský
(Bpv Braun Partners)

Fact Witnesses:
Mr. Richard Knopf

Expert Witnesses:
Mr. Libor Frýzek
(Ernst & Young (CZ))

Mr. Geoffrey Senogles
Mr. Trevor Slack (not testifying)
(Charles River Associates)

Mr. Pablo T. Spiller
Mr. Antόn García
Mr. Daniel George (not testifying)
(Compass Lexecon)

The Respondent:
Ms. Anna Bilanová
Mr. Martin Pospíšil
(Ministry of Finance of the Czech Republic)

Mr. Paolo Di Rosa
Mr. Dmitri Evseev
Ms. Mallory Silberman
Mr. Peter Nikitin
Mr. John Muse-Fisher
Mr. Bart Wasiak
Ms. Aimee Kneiss
Mr. Eugenio Cruz Araujo
(Arnold & Porter Kaye Scholer (UK) LLP)

Ms. Karolína Horáková
Mr. Libor Morávek
Mr. Pavel Kinnert
(Weil, Gotshal & Manges s.r.o. Advokátní Kancelář)

Fact Witnesses:
Mr. Josef Fiřt
Mr. Ladislav Minčič

Expert Witnesses:
Mr. Wynne Jones
(Frontier Economics Ltd.)

Mr. Petr Kotáb
(Dentons Europe CS LLP)

Mr. Michael Peer
Mr. Jiří Urban (not testifying)
(KMPG Česká republika, s.r.o.)

Permanent Court of Arbitration:
Mr. Levent Sabanogullari
Ms. Maria Kiskachi
Mr. Shigeki Obi
Ms. Camille Dadure

Court Reporter:
Mr. Trevor McGowan

Interpreters:
Ms. Simona Sternova
Dr. Dominika Winterová
Ms. Manuela Degenkolb
Ms. Birte Priebe

94.

By separate e-mails dated 6 March 2017, pursuant to the Tribunal's authorization at the hearing,⁸ the Respondent submitted two further exhibits into the factual record of the present proceedings as R-427 and R-428.

95.

By e-mails dated 7 June 2017, the Parties requested "a one-week extension of time to provide submissions on costs". The President granted the extension by e-mail of the same date.

96.

On 16 June 2017, the Claimant submitted the Claimant's Submission on Costs (the "Claimant's Submission on Costs") to the Registry. On the same date, the Respondent filed its Cost Submission (the "Respondent's Cost Submission") with the Registry. On 17 June 2017, by agreement of the Parties, the Registry circulated the Parties' respective cost submissions to the other side and to the Tribunal.

97.

By e-mail of 9 November 2017, the Respondent inquired whether the Tribunal had already completed its deliberations on the key issues before it, indicating that it might apply for the introduction of recent arbitral awards on subjects related to those currently pending before this Tribunal.

98.

On 14 November 2017, the Tribunal informed the Parties that it had "reached an advanced stage in its deliberations on key issues […] and therefore considers that there is no need for a supplemental briefing."

99.

By e-mail dated 5 December 2017, the Tribunal requested the Parties to confirm "whether exhibit C-26 is a reproduction of the official publication of the Act on Promotion in the Czech Official State Journal" or, alternatively, to submit the official publication of the Act on Promotion to the Tribunal.

100.

By separate e-mails of 15 December 2017, each Party confirmed that exhibit C-26 is a verbatim reproduction of the Act on Promotion as published in the Czech Official State Journal.

101.

By letter dated 13 March 2018, the Respondent requested the Tribunal to admit into the record of the present arbitration, and invite comments on, the judgment of the Grand Chamber of the Court of Justice of the European Union in the matter of Slovak Republic v. Achmea BV dated 6 March 2018 (the "Achmea judgment").

102.

Upon the Tribunal's invitation, by letter dated 23 March 2018, the Claimant provided its comments, opposing the Respondent's aforementioned requests.

103.

Following a further round of comments received from the Respondent on 6 April 2018 and from the Claimant on 13 April 2018, the Tribunal decided on 18 April 2018 to grant the Respondent's requests and invite further submissions from the Parties on the impact of the Achmea judgment on this Tribunal's jurisdiction. In particular, the Tribunal invited submissions from the Parties on the following issues:

1. Whether the Achmea judgment is dependent on the specific wording of the BIT that was at issue in the case before the ECJ and how it relates to the BITs at issue in the present proceedings;

2. Whether and how the Achmea judgment applies in arbitrations where the arbitral seat is outside of the EU, including in particular the impact, if any, of Article 344 TFEU on the validity of an intra-EU BIT jurisdiction clause for an arbitral tribunal sitting outside of the EU;

3. Whether and how the Achmea judgment applies to the Energy Charter Treaty;

4. Whether and how the Achmea judgment actually impacts upon the jurisdiction of an arbitral tribunal sitting outside of the EU, as distinct from the enforceability of awards within the EU;

5. How the Achmea judgment fits in, if at all, with Articles 59 and 30 of the Vienna Convention on the Law of Treaties;

6. The relevance of Articles 27 and 46 of the Vienna Convention on the Law of Treaties for the present arbitrations;

7. How Swiss courts and Swiss scholarship have considered the position of EU law in a legal universe consisting of international law and domestic law;

8. The impact, if any, of Article 177(2) of the Swiss Federal Code on Private International Law; and

9. The role of waiver / estoppel, including in light of Article 186(2) of the Swiss Federal Code on Private International Law, in this context.⁹

104.

Following three extensions of the deadline requested by the Parties by e-mails dated 20 April 2018, 10 May 2018, and 8 June 2018, all of which were granted by the Tribunal, on 14 May 2018 and 9 June 2018 respectively, each Party submitted its comments on the impact of the Achmea judgment on this Tribunal's jurisdiction (the "Respondent's Comments on Achmea" and "Claimant's Comments on Achmea") accompanied by legal authorities.¹⁰

105.

By letter to the Parties dated 24 June 2018, Mr. Born stated as follows:

I am writing to inform you that, due to recent, unforeseen developments in another proceeding, I have concluded that it is prudent for me to resign as co-arbitrator in the captioned matters. Regrettably, obligations of confidentiality prevent me from providing further details.

106.

By letter dated 25 June 2018, the PCA, under instructions of the Presiding Arbitrator, invited the Parties to provide their comments on Mr. Born's letter of 24 June 2018, "tak[ing] into account Swiss law as the law of the seat of the arbitration, with reference to the treatiese of Bernhard Berger & Franz Kellerhals, International and Domestic Arbitration in Switzerland, 3rd edition 2015, pp. 331-335.

107.

On 9 July 2018, each Party provided its comments on Mr. Born's letter.

108.

By letter of 11 July 2018, the Presiding Arbitrator and Mr. Landau sent a letter to the Parties, stating as follows:

Given the advanced stage that these proceedings have already reached, the Parties are invited to provide, by Wednesday, 18 July 2018, their comments on the possibility that the Presiding Arbitrator and Mr. Landau complete these arbitrations as a two-person tribunal, assuming that they are able to agree on all matters in dispute, it being understood that, failing agreement on any matter in dispute, the Presiding Arbitrator and Mr. Landau would invite the Claimants to make a substitute appointment.

109.

On 18 July 2018, the Claimant informed the Tribunal that it wished to proceed with the appointment of a substitute arbitrator.

110.

By letter dated 20 August 2018, pursuant to Articles 13(1) and 7(1) of the UNCITRAL Rules, the Claimant appointed Mr. John Beechey, CBE as its party-appointed arbitrator.

111.

At the request of the Chairman, on 21 August 2018, the Registry circulated Mr. Beechey's Declaration of Acceptance and Statement of Impartiality and Independence, together with his disclosure pursuant to Article 9 of the UNCITRAL Rules.

112.

By letter of 28 August 2018, the Respondent expressed concerns pertaining to Mr. Beechey's appointment and requested Mr. Beechey's resignation in the present matter.

113.

By e-mail dated 3 September 2018, Mr. Beechey advised the Parties that he would "leave it to the appointing authority to consider the matter on its merits."

114.

On 4 September 2018, the Respondent submitted its Notice of Challenge of Mr. Beechey in accordance with Articles 11(1) and 11(2) of the UNCITRAL Rules.

115.

By e-mail dated 19 September 2018, the Claimant advised the Tribunal that it did not agree to the challenge of Mr. Beechey, and that the Parties had agreed that the challenge be decided by the Arbitration Institute of the Stockholm Chamber of Commerce.

116.

On 26 October 2018, the Arbitration Institute of the Stockholm Chamber of Commerce dismissed the challenge to Mr. Beechey.

117.

By letter dated 8 November 2018, the Claimant inter alia requested the Tribunal "to inform the Parties on the next steps" of the arbitration and sought leave to submit brief supplemental costs submissions. On the same date, the Tribunal provided an update on the status of its deliberations to the Parties.

118.

On 16 November 2018 the Respondent requested the Tribunal "to allow the Parties to provide supplementary briefing on recently issued and highly relevant arbitral awards", to schedule a "brief oral hearing, to permit counsel to address issues arising out of the Achmea Judgment", and commented on the Claimant's request for updated costs submissions.

119.

By letter of 19 November 2018, the Tribunal rejected the Respondent's request for a briefing on recently issued awards, citing the advanced stage of its deliberations. By the same letter, the Tribunal granted leave to the Respondent to submit a "short written submission on any genuinely new points regarding the Achmea Judgment that it considers it has not had an opportunity to address". The Claimant was afforded an opportunity to submit a "brief written reply" thereto. The Tribunal further invited the Parties to provide a comprehensive update of their position on costs. Finally, the Tribunal informed the Parties that, upon receipt of the aforementioned submissions, it intended to declare the hearings closed in accordance with Article 29(1) of the UNCITRAL Rules.

120.

On 3 December 2018 the Respondent submitted a Reply on the Impact on the Tribunal's Jurisdiction of the ECJ's Judgment in Slovakia v Achmea (the "Respondent's Reply on Achmea"), accompanied by legal authorities RLA-419 through RLA-436.

121.

On 17 December 2018 the Claimant submitted its Reply on the Impact of Achmea on the Tribunal's jurisdiction (the "Claimant's Reply on Achmea"), accompanied by legal authorities CLA-295 through CLA-301.

122.

On 11 January 2019, the Claimant submitted the Claimant's Supplemental Submission on Costs to the Registry and the Respondent filed the Respondent's Updated Submission on Costs with the Registry. On the same day, by agreement of the Parties, the Registry circulated the Parties' respective costs submissions to the other side and to the Tribunal.

123.

By letter dated 28 January 2019, the Tribunal acknowledged receipt of the Parties' respective costs submissions and declared the hearings closed pursuant to Article 29(1) of the UNCITRAL Rules.

124.

In its Memorial (including Response on Jurisdiction), the Claimant requests the Tribunal to:

(a) Declare that the Respondent's actions:

(i) constitute unfair and inequitable treatment and violate the obligation to provide full protection and security in breach of the ECT and the Germany BIT;

(ii) were implemented through unreasonable and arbitrary measures which impaired the maintenance, use, enjoyment and disposal of the Claimant's investment in violation of the ECT and the Germany BIT;

(b) Order the Czech Republic to:

(i) compensate the Claimant for all losses caused to it by the Czech Republic's breaches, in an amount of not less than CZK 39.2 million (inclusive of pre-award interest);

(ii) pay to the Claimant post-award interest on any amount of damages awarded, from the date of the final award until its full payment; and

(iii) reimburse the Claimant for all costs and expenses of this arbitration, including legal and expert fees, the fees and expenses of any experts appointed by the Tribunal, the fees and expenses of the Tribunal, and all other costs of the arbitration, including any expenses arising from the participation of third parties.¹¹

125.

In its Reply Submission (including Rejoinder on Jurisdiction), the Claimant requests the Tribunal to:

(a) Dismiss the jurisdictional objections raised by the Respondent;

(b) Declare that the Respondent's actions:

(i) constitute unfair and inequitable treatment and violate the obligation to provide full protection and security in breach of the ECT and the Germany BIT;

(ii) were implemented through unreasonable and arbitrary measures which impaired the maintenance, use, enjoyment and disposal of the Claimant's investment in violation of the ECT and the Germany BIT;

(c) Order the Czech Republic to:

(i) compensate the Claimant for all losses caused to it by the Czech Republic's breaches, in an amount of not less than CZK 62.6 million (inclusive of pre-award interest and tax gross-up);

(ii) pay to the Claimant post-award interest on any amount of damages awarded, from the date of the final award until its full payment; and

(iii) reimburse the Claimant for all costs and expenses of this arbitration, including legal and expert fees, the fees and expenses of any experts appointed by the Tribunal, the fees and expenses of the Tribunal, and all other costs of the arbitration, including any expenses arising from the participation of third parties.¹²

126.

In its Rejoinder on Jurisdiction, the Claimant requests the Tribunal to:

(a) Dismiss the jurisdictional objections raised by the Respondent;

(b) Declare that the Respondent's actions:

(i) constitute unfair and inequitable treatment and violate the obligation to provide full protection and security in breach of the ECT and the Germany BIT;

(ii) were implemented through unreasonable and arbitrary measures which impaired the maintenance, use, enjoyment and disposal of the Claimant's investment in violation of the ECT and the Germany BIT;

(c) Order the Czech Republic to:

(i) compensate the Claimant for all losses caused to it by the Czech Republic's breaches, in an amount of not less than CZK 61.3 million (inclusive of pre-award interest and tax gross-up);

(ii) pay to the Claimant post-award interest on any amount of damages awarded, from the date of the final award until its full payment; and

(iii) reimburse the Claimant for all costs and expenses of this arbitration, including legal and expert fees, the fees and expenses of any experts appointed by the Tribunal, the fees and expenses of the Tribunal, and all other costs of the arbitration, including any expenses arising from the participation of third parties.¹³

127.

In its Respondent's Counter Memorial, the Respondent requests that the Tribunal:

(a) Declare Photovoltaik's ECT claims barred for lack of jurisdiction;

(b) With respect to any claims over which the Tribunal concludes that it has jurisdiction, declare that the Czech Republic did not breach any of its obligations under either the ECT or the Germany BIT;

(c) In the event that it exercises jurisdiction over any of Photovoltaik's claims and finds the Czech Republic liable, declare that Photovoltaik is not entitled to any damages;

(d) Order Photovoltaik to pay all costs of the arbitration, including the totality of the Czech Republic's legal and expert fees and expenses and the fees and expenses of the Tribunal, as well as the costs charged by the PCA; and

(e) Award to the Czech Republic any such additional relief as it may consider just and appropriate.¹⁴

128.

In its Respondent's Rejoinder, the Respondent requests that the Tribunal:

(a) Declare all of Photovoltaik's claims barred for lack of jurisdiction;

(b) With respect to any claims over which the Tribunal concludes that it has jurisdiction, declare that the Czech Republic did not breach any of its obligations under either the ECT or the Germany BIT;

(c) In the event it exercises jurisdiction over any of Photovoltaik's claims, declare and find that the Czech Republic did not breach any of its obligations under either the ECT or the Germany BIT;

(d) In the event that it exercises jurisdiction over any of Photovoltaik's claims and finds the Czech Republic liable, declare that Photovoltaik is not entitled to any damages;

(e) Order Photovoltaik to pay all costs of the arbitration, including the totality of the Czech Republic's legal and expert fees and expenses and the fees and expenses of the Tribunal, as well as the costs charged by the PCA; and

(f) Award to the Czech Republic any such additional relief as it may consider just and appropriate.¹⁵

129.

In 1992, the Czech Republic adopted Act No. 586/1992 on Income Tax ("Act on Income Tax"), which, according to the Claimant, was the first legislative step encouraging the use of renewable energy sources ("RES"), including photovoltaic plants. Through the Act on Income Tax, the Czech Republic implemented two relevant tax incentives. The first exempted RES producers from corporate income tax for the year in which the respective solar facility was put into operation and the following five calendar years ("Tax Holiday").¹⁶ The second incentive introduced an accelerated depreciation period for tax purposes for certain components of, inter alia, photovoltaic installations.¹⁷

130.

In December 1995, the EC (then called "the Commission of the European Communities") published a white paper on the "Energy Policy for the European Union", which aimed at encouraging the promotion of RES through tax benefits and other measures.¹⁸ In November 1997, the EC published another white paper entitled "Energy for the Future: Renewable Sources of Energy" stating that "[a] long-term stable framework for the development of renewable sources of energy, covering political, legislative, administrative, economic and marketing aspects is in fact the top priority for the economic operators involved in their development."¹⁹

131.

On 27 September 2001, following the publication of the two white papers, the European Parliament and the Council of the European Union adopted Directive 2001/77/EC on the promotion of electricity produced by RES in the internal electricity market ("2001 Directive"), aiming "to promote an increase in the contribution of [RES] to electricity production in the internal market for electricity and to create a basis for a future Community framework thereof."²⁰ In light of this objective, EU Member States were required to "take appropriate steps to encourage greater consumption of electricity produced from renewable energy sources in conformity with […] national indicative targets"²¹ and to "adopt and publish a report setting national indicative targets for future consumption of electricity produced from renewable energy sources in terms of percentage of electricity consumption for the next ten years."²² The 2001 Directive also obliged Member States to "outline the measures taken or planned, at the national level, to achieve these national indicative targets" and to publish their success in meeting the targets.²³ The Annex to the 2001 Directive set out "[r]eference values for Member States' national indicative targets for the contribution of electricity produced from renewable energy sources to gross electricity consumption by 2010."²⁴

132.

In late 2003, the Czech Republic prepared draft legislation that was aimed at increasing the support provided to RES producers.²⁵ An explanatory report on the draft legislation was dated 12 November 2003 ("Explanatory Report").²⁶ The draft legislation was eventually adopted in March 2005 as Act No. 180/2005 Coll. ("Act on Promotion"). While not yet an EU Member State, the Czech Republic was already under an obligation to comply with EU law, including rules on State aid. On 16 December 2003, the Czech Society for Wind Energy and the Czech national section of the European Association for Renewable Energy ("EUROSOLAR") filed a complaint with the EC in respect of the 2003 draft of the Act on Promotion in view of its alleged incompatibility with EU State aid law.²⁷

133.

On 27 July 2004, having examined the complaint, the EC informed EUROSOLAR that the 2003 draft of the Act on Promotion, as it then was, "does not fall under the definition of State aid within the meaning of Article 87 (1) of the EC Treaty".²⁸ The last paragraph of the letter read: "Should you learn of any new particulars that might demonstrate the existence of an infringement of the State aid rules, I would be grateful if you would inform my department as soon as possible".²⁹

134.

Upon its accession to the EU, on 1 May 2004, the Czech Republic assumed all obligations deriving from EU legal instruments, including the 2001 Directive. In particular, Annex II – Energy, Part A of the 2003 EU Accession Treaty set the Czech Republic's national target for the contribution of electricity produced from RES to the gross electricity consumption by 2010 at 8% ("Indicative 2010 Target").³⁰

135.

On 31 March 2005, the Czech Republic adopted the Act on Promotion, which entered into force on 1 August 2005.³¹ Section 1(2) of the Act on Promotion defined its objectives as follows:

Section 1

Subject Matter of Regulation

[…]

(2) The aim of this Act is to, in the interest of climate protection and environmental protection,

a) promote the exploitation of renewable energy sources ("Renewable Sources"),

b) ensure that the share of Renewable Sources in the consumption of primary energy sources continually increases,

c) contribute to conservation in the exploitation of natural resources and to the sustainable development of society,

d) put in place the conditions for achieving the indicative target so that the share of electricity produced from Renewable Sources accounts for 8% of gross electricity consumption in the Czech Republic in 2010 and to put in place the conditions for further increasing such share after 2010.

136.

The Act on Promotion introduced new incentives for RES producers through a combination of tariff and non-tariff mechanisms including: (1) preferential treatment of RES producers in the distribution or transmission of electricity, (2) fixed purchase prices or Feed-in-Tariffs ("FiT") and, alternatively, (3) Green Bonuses ("Green Bonuses", and together with the FiT, "Subsidies" or "Tariffs").³²

137.

The preferential treatment of RES producers in the distribution or transmission of electricity enshrined in Section 4 of the Act on Promotion, provided, inter alia, for the obligation of the transmission grid operator and distribution system operators "to connect the facilities […] to the transmission grid or distribution systems on a priority basis for the purpose of transmission or distribution of electricity from [RES]", if a RES producer requests them to do so.³³

138.

The FiT system obliged grid operators to purchase all electricity produced from RES on a priority basis and at a price annually determined by the Czech Energy Regulatory Office ("ERO").³⁴

139.

These tariff incentives were established by Section 6 of the Act on Promotion, which reads:

Section 6

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 achievement of the indicative target so that the share of electricity produced from Renewable Sources accounts for 8% of gross electricity consumption in 2010 and

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 setting the amounts of green bonuses, the Office also takes into account a heightened degree of risk associated with off-taking electricity from Renewable Sources in the electricity market.

(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 [the development of such costs] over time.

(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. The provision of the first sentence shall not be used for setting the Purchasing Prices for the following calendar year for those types of Renewable Sources where the payback period on capital expenditures is shorter than 11 years in the calendar year in which the Office decides on the setting of the new Purchase Prices; When setting Purchase Prices, the Office proceeds in accordance with subsections 1 through 3.

140.

Thus, pursuant to Article 6(1)(b)(1) of the Act on Promotion, RES producers were projected to recover their investment in RES plants within 15 years, provided that the installations met certain "technical and economic parameters", including "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." Article 6 of the Act on Promotion also introduced two restrictions on the ability of the ERO to change the tariffs. First, Article 6(1)(b)(2) provided that the established FiT would remain the same for a period of 15 years subject to the industrial producer price index.³⁵ Second, under Article 6(4) of the Act on Promotion, the FiT set by the ERO in any given year was not allowed to be decreased by more than 5% of the value of the FiT in the previous year ("5% rule").³⁶

141.

In the same year in which the Act on Promotion entered into force, various governmental officials and entities of the Czech Republic promoted the Incentive Regime for RES producers and emphasised the importance of the guaranteed electricity purchase price on several occasions.³⁷ In particular, Mr. Martin Bursík, one of the co-authors of the Act on Promotion, who became Minister of Environment from 2007 to 2009, stated in his article dated 1 June 2005 that the most important principle of the Act on Promotion was "the guarantee of a stable feed-in tariff for a 15-year period following the launch of the power station into operation."³⁸

142.

According to Article 6(1)(b)(1) of the Act on Promotion, the indicative technical and economic parameters for the fixing of the FiT were to be established by implementing regulations issued by the ERO.

143.

By Regulation No. 475/2005 Coll. ("Technical Regulation") dated 30 November 2005 and amended in 2007 and 2009, the ERO set out the general technical and economic parameters in order for newly installed plants to achieve the 15-year payback period provided by Article 6(1)(b)(1) of the Act on Promotion.³⁹ Section 4 of the Technical Regulation stated that:

In order for the 15-year pay-back period to be assured through the support by Purchase Prices [FiT] 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.⁴⁰

144.

In 2007 and until the end of 2010, ERO set the weighted average cost of capital ("WACC") level used to calculate the FiT at 7%.⁴¹ It moreover applied the maximum 5% annual Tariffs reduction required by Section 6(4) of the Act on Promotion.⁴² Furthermore, it amended the Technical Regulation in 2007, confirmed in 2009, to fix the estimated lifetime of new photovoltaic plants at 20 years.⁴³ The period during which the FiT would apply was correspondingly extended from 15 to 20 years.⁴⁴

145.

In 2009, the ERO issued Regulation No. 140/2009 Coll. ("Pricing Regulation"), Article 2(9) of which provided for an annual increase of the FiT:

Feed-in tariffs and Green bonuses stipulated by the Act on Promotion are applied throughout the estimated lifetime of plants determined by the regulation implementing some provisions of the Act on Promotion. The Feed-in tariffs increase annually throughout the lifetime of the plant classified in the respective category depending on the type of the renewable resource used and the date of launch into operation with respect to the industrial producers' price index by a minimum of 2% and maximum of 4%, with the exception of biomass and bio gas burning plants.⁴⁵

146.

The above regulation thus established that payment of the FiT and Green Bonuses was guaranteed throughout the estimated lifetime of photovoltaic power plants and the FiT was to increase annually by a minimum of 2% and a maximum of 4% "taking into account the inflation price index for industrial producers over the lifetime of the plant."⁴⁶

147.

According to the Claimant, the Act on Promotion, the relevant ERO regulations and the Act on Income Tax jointly established the incentive regime, which offered investments in the photovoltaic sector the FiT or alternatively Green Bonuses, the Income Tax Exemption and the Shortened Depreciation Period (the "Incentive Regime").⁴⁷ The Respondent has a different understanding, namely that the regime provided by the Czech Republic was not photovoltaic-focused. According to this view, while the Act on Promotion and the relevant ERO regulations provided an incentive scheme as to the entire RES by granting either the FiT or the Green Bonuses, the Income Tax Exemption and the Shortened Depreciation Period did not constitute part of it.

148.

In late 2008, as explained by the Claimant, the Czech solar energy sector became particularly attractive for foreign investors, due to the decrease in prices of photovoltaic components.⁴⁸

149.

According to the Claimant, the ERO was still promoting the Incentive Regime in March 2010. Mr. Richard Knopf, managing director and beneficial owner of the Claimant, testified that some of the ERO presentations were shown to him in the course of the meetings regarding his potential investment in the Czech Republic.⁴⁹ Mr. Thomas Winkel, the then key account manager at the Vienna office of Raiffeisen Bank, who provided Mr. Knopf with information on the Incentive Regime, testified in his witness statement that he attended a presentation delivered at an industry conference by Mr. Rostislav Krejcar, the ERO's head of department for RES, on 17 March 2010, in Prague.⁵⁰ Mr. Winkel also stated that after the presentation he had a private discussion with Mr. Krejcar, who "had no doubts that the ERO was interested in the installation of further solar energy plants and that stable FiT had to be granted for 20 years".⁵¹According to Mr. Knopf, the presentation emphasized the stability of the Incentive Regime.⁵² At the same time, as noted by the Respondent, Mr. Krejcar stated during that conference that the ERO was "prepared to decrease support of photovoltaic electricity production dramatically".⁵³ The Claimant confirmed that during the conference the possibility of the reduction of the FiT was indeed mentioned.⁵⁴ However, according to the Claimant, "such a reduction would have applied only for plants put into operation after the end of 2010".⁵⁵

150.

On 4 November 2005, the Claimant, Photovoltaik Knopf Betriebs-GmbH, was set up by R. Knopf GmbH, an Austrian company whose owner is Mr. Richard Knopf.⁵⁶ It is 100% owned by Knopf Privatstiftung, a private foundation registered in Austria.⁵⁷

151.

The Claimant invested in the Czech solar business on 10 August 2010 through the acquisition of 99% of the shares of FVE Kněžmost s.r.o. (formely Drobil-Reality s.r.o.), a Czech limited liability company ("Knĕžmost" or "SPV") from WEA Solar technology s.r.o, and 1% of the shares from the manager of WEA Solar s.r.o., Mr. Henner Jordan, for a total amount of CZK 11,595,000. Through the same transaction, (a) the Claimant acquired a plot of land in Kněžmost-Koprník for CZK 1,109,700 and (b) the SPV entered into the Engineering, Procurement and Construction ("EPC") contract with a German company belonging to the WEA Solar group for the construction of a EUR 2,900/kWp plant with a capacity of 1026 kWp.⁵⁸ According to the Claimant the investment was "sunk" when the SPV was acquired and when the EPC contract was concluded "so that the Claimant put the money in the project".⁵⁹

152.

The Claimant states that its investment in the project, including the price for acquiring the SPV and the plot of land on which the plant was built, the payment of legal and technical due diligences, and a EUR 261,000 contribution to the SPV's funds in September 2010, amounted to EUR 798,202.20 in total.⁶⁰ For the construction of the plant, the SPV obtained a senior bank loan of EUR 2,950,000 from Raiffeisen Landesbank Niederösterreich Wien AG.⁶¹

153.

The licensing process to build and operate the solar power plants comprised the following steps:

a) application to a regional grid operator for connection to the grid;

b) issuance by the grid operator of a binding statement contained in a preliminary contract, confirming that the grid could sustain a given electricity input and that a grid connection agreement would be concluded within 180 days;

c) entry into a grid connection agreement with the grid operator;

d) application to the ERO for the energy production license; and

e) entry into a power purchase agreement with the grid operator.⁶²

154.

The Claimant's solar plant was finished and the licensing process completed by the end of 2010. In particular, on 23 December 2010 the SPV entered into a grid connection agreement.⁶³ In December 2010, it was put into operation with a capacity of MW 0,999,⁶⁴ with the plant beginning supplying electricity to the grid as of 12 January 2011.⁶⁵ On 20 January 2011, the power purchase agreement between the SPV and ČEZ Distribuce, a.s. was executed.⁶⁶ On 12 December 2012, a new power purchase agreement was concluded.⁶⁷

155.

The events described below unfolded in the following political context in the Czech Republic. In March 2009, the government of the then-incumbent Prime Minister Mr. Mirek Topolanek resigned after a vote of no confidence.⁶⁸ In May 2009, a temporary government lead by the new Prime Minister Jan Fischer was sworn in.⁶⁹ This temporary government was in power for more than a year. During that period, it undertook not to "open any politically contentious, polarising issues during its term in office" and not to "submit to the Chamber of Deputies any politically or ideologically polarising legislative proposals".⁷⁰ Only in July 2010 was the new government finally formed, following the elections that were scheduled for October 2009, but were postponed by the Czech Constitutional Court until May 2010.⁷¹

156.

In June 2009, while the temporary government was still in power, the Czech media reported about "the ongoing solar boom" in the Czech solar energy sector and quoted Mr. Josef Fiřt, the then head of the ERO, according to whom "[t]he solar electricity feed-in tariff has gone in some instances economically beyond the limit as the distributors are forced to enhance power lines, which makes electricity more expensive for consumers."⁷² Therefore, as further reported by the Czech media, the ERO was "seeking ways to reduce the solar energy feed-in tariff dramatically."⁷³ However, as reported, under the existing laws, the ERO was not allowed to "lower the RES electricity feed-in tariff by more than 5% per year. This is why it [was] trying to agree an amendment to the rules with the government and members of parliament."⁷⁴

157.

On 25 June 2009, a new EU directive 2009/28/EC dated 23 April 2009 replaced the 2001 Directive with the aim of establishing a common framework for the promotion of energy from RES ("2009 Directive").⁷⁵ The 2009 Directive fixed the Czech Republic's new target for the contribution of electricity produced from RES at 13% by 2020 ("2020 target").⁷⁶ Its preamble furthermore stated that "[o]ne important means to achieve the aim of this Directive is to guarantee the proper functioning of national support schemes, as under Directive 2001/77/EC, in order to maintain investor confidence and allow Member States to design effective national measures for target compliance".⁷⁷

158.

Between July 2008 and August 2009, the ERO sent several letters to the Ministry of Industry and Trade regarding the situation in the Czech solar energy sector.⁷⁸ On 4 July 2008, Mr. Fiřt sent a letter to the Deputy Minister of Industry and Trade emphasizing that grid operators would have to make significant investments into infrastructure in view of the increased number of requests for connection to the grid.⁷⁹ By letter dated 1 July 2009, Mr. Fiřt informed the Minister of Industry and Trade that investors in the photovoltaic energy were put at "an unprecedented advantage over investors and producers of other types of renewable resources" due to the decreased cost of investment.⁸⁰ Mr. Fiřt also stressed that the on-going growth in the photovoltaic sector "leads to a speculative block of connection capacities at the level of the distribution systems" and ultimately would result in a significant financial burden on Czech customers.⁸¹ In view of these considerations, Mr. Fiřt proposed to repeal the 5% rule so that the ERO would be allowed to adjust the FiT.⁸² By letter dated 10 August 2009, Mr. Blahoslav Němeček, vice-chairman and director of the regulatory section of the ERO, informed Mr. Roman Portužák, acting director of the electric power department at the Ministry of Industry and Trade, that Mr. Fiřt "had already approached the minister of industry and trade […] and […] received a positive response expressing readiness of the MIT to cooperate" on the amendments to the Act on Promotion.⁸³

159.

On 24 August 2009, the Ministry of Industry and Trade issued a press release communicating its intention to abolish the 5% rule starting from 1 January 2010 since "the grant policy from the part of the state [in the photovoltaic sector] has ceased to fulfil its primary function, because support for solar power stations has shifted from an area of necessary state support for its existence to the position of a branch where profit is guaranteed regardless of the situation on the market."⁸⁴

160.

On 28 August 2009, Mr. Portužák (MIT) sent to Mr. Němeček (ERO) a letter acknowledging the "huge" growth in the solar energy sector and the future unsustainability of the existing regulatory regime.⁸⁵ At the same time, Mr. Portužák noted "the goal of section 6(4) [of the Act on Promotion] was to ensure the investors in renewable sources certainty of payback of their investments, transparency, and predictability. A simple cancellation could thus entail a risk of suits filed by investors against the Czech Republic on grounds of lost investment."⁸⁶ Mr. Portužák further stated that the MIT "is preparing the implementation of the 2009 Directive into the Czech legislation" meaning that amendments to the existing regulatory regime would "require longer time" and would "exceed the time limit for ERO's obligation to set purchasing prices for RES to be commissioned in 2010".⁸⁷

161.

By letter dated 8 September 2009, Mr. Fiřt informed Mr. Vojíř, Chairman of the Economic Committee of the Chamber of Deputies, that the 5% rule needed to be amended.⁸⁸ The same letter enclosed a legislative draft enabling the ERO to disregard the 5% rule when setting the purchase prices for 2011 and thereafter "for those types of renewable resources, for which an investment return of less than eleven years is achieved in the year, in which a decision is made on the new purchase prices".⁸⁹ Mr. Fiřt also noted that "[i]nvestors will be able to prepare sufficiently in advance for the change in the conditions for investing which should eliminate entirely the risk of possible lawsuits in the Czech Republic regarding protection of investments."⁹⁰

162.

On 16 November 2009, the Government introduced to Parliament an explanatory report on draft Act No. 137/2010 essentially reflecting the legislative draft and the explanations provided by Mr. Fiřt to Mr. Vojíř in the aforementioned letter dated 8 September 2009.⁹¹

163.

On the same day, during the Government's press conference, Mr. Vladimír Tošovský (Minister of Industry and Trade) clarified that the Incentive Regime would remain unchanged for 2010. Mr. Tošovský further explained that draft Act No. 137/2010 would reduce the incentive only from 2011, because some investors had already invested in on-going projects and the change of "the terms and conditions under which they invested in the course of the development […] could pose a threat to their investment."⁹²

164.

In February 2010, the Czech national transmission system operator put a national moratorium on further reservation of capacity of the grid for future connections.⁹³

165.

By open letter to Parliament dated 12 March 2010, distribution companies, namely ČEZ, a.s., E. ON Czech Holding AG and PRE., a.s. urged the Chamber of Deputies to take a decision on the proposed amendments to the Act on Promotion during its March session, noting that the RES support "should be set fairly, to guarantee a long-term return on investment, not excessive profits."⁹⁴

166.

On 17 March 2010, Parliament adopted Act No. 137/2010, amending the Act on Promotion by abolishing from 1 January 2011 the 5% rule "for those types of renewable resources, which, in the year in which the new feed-in tariffs are being determined, achieve the investment return shorter than 11 years."⁹⁵ According to the Claimant, this amendment concerned only those plants that were connected to the grid after 2011.⁹⁶

167.

In July 2010, in accordance with Article 4 of the 2009 Directive, the Czech Ministry of Industry and Trade published a "National Renewable Energy Action Plan", providing a roadmap of how the Czech Republic planned to attain its 2020 target for the contribution of renewable energies to its energy consumption ("2010 Action Plan").⁹⁷ The 2010 Action Plan, inter alia, mentioned tax exemptions as part of the incentive scheme.⁹⁸ It also confirmed the FiT level for plants connected in 2010 and its 20-year duration of the guaranteed FiT.⁹⁹ Furthermore, the 2010 Action Plan approved an increase in PV generation capacity for 2010 and stated that there were no caps on either the total volume of electricity produced per year or of installed capacity that was entitled to the FiT.¹⁰⁰

168.

Also in July 2010, the Prime Minister and the Minister of Environment of the Czech Republic announced to the press their intentions to cope with the solar boom by altering the existing fiscal regime.¹⁰¹

169.

On 15 September 2010, the Government submitted to Parliament draft Act No. 330/2010 in which it proposed to withdraw subsidies from all but the smallest solar installations.¹⁰² The draft Act provided, inter alia, that "[p]hotovoltaic power plants already connected to the electric power system will have their right to claim support preserved under existing conditions".¹⁰³ A week later, the Government instructed the Minister of Industry and Trade and the Minister of Environment to create a coordination committee in order to prepare "an analysis of the impacts of support for renewable resources on energy prices and potential proposals for resolution of the matter".¹⁰⁴

170.

In the course of October 2010, the Government submitted to Parliament draft legislation amending the Act on Income Tax and the Act on Promotion to introduce a subsidy to be provided by the Czech Republic to the grid operators.¹⁰⁵ The draft legislation contained, inter alia, the following provision: "[t]he right to receive Support for the production of electricity from sources using energy from solar radiation that are connected to the transmission grid or distribution system, as such right arises under existing legal regulations, shall be maintained".¹⁰⁶

171.

On 20 October 2010, the Government stated on its website that the discussion regarding measures preventing an increase of electricity prices had been closed and one of the measures "will be represented by the introduction of a levy at the rate of 26% from electricity produced from solar radiation in facilities put into operation in 2009 and 2010".¹⁰⁷

172.

On 2 November 2010, the Economic Committee of the Chamber of Deputies of the Parliament of the Czech Republic adopted a resolution recommending the Chamber of Deputies to adopt draft legislation amending the Act on Promotion. The resolution enclosed draft legislation which, in addition to the subsidies to the grid operators proposed by the Government, envisaged the introduction of a levy on "electricity produced from solar radiation during the period from 1 January 2011 to 31 December 2013 in facilities commissioned during the period from 1 January 2009 to 31 December 2010".¹⁰⁸

173.

In November-December 2010, the Czech Parliament adopted Act No. 330/2010 Coll., Act No. 346/2010 Coll., and Act No. 402/2010 Coll., which amended the Act on Promotion and the Act on Income Tax and implemented the following changes to the RES regime with effect from 1 January 2011:

a) Act No. 330/2010 Coll. amended Article 3(5) of the Act on Promotion and abolished any incentives for photovoltaic plants with installed output exceeding 30 kWp that were commissioned after 1 March 2011.¹⁰⁹ This Act is not one of the measures challenged in this arbitration as it did not affect the installations put into operation before March 2011;

b) Act No. 346/2010 Coll. repealed the Tax Holiday and the accelerated depreciation period guaranteed by the Act on Income Tax;¹¹⁰

c) Act No. 402/2010 Coll. introduced the levy on "electricity produced from solar radiation during the period from 1 January 2011 to 31 December 2013 in facilities commissioned during the period from 1 January 2009 to 31 December 2010" ("Solar Levy").¹¹¹ The Solar Levy was imposed on RES producers. However, transmission grid operators or regional distribution system operators were responsible for making the payment of the Solar Levy.¹¹² The rate of the Solar Levy was set at 26% and 28% for payments to solar energy producers respectively under the FiT system and under the Green Bonuses system respectively.¹¹³

174.

In 2012-2013 the RES regime was further amended by Act No. 165/2012 Coll. and Act No. 310/2013 Coll.

175.

Act No. 165/2012 Coll., which entered into force partly upon its publication on 30 May 2012, and partly thereafter on 1 January 2013, replaced the Act on Promotion ("New Act on Promotion").¹¹⁴ First, the New Act on Promotion terminated all existing contracts between RES producers and the grid operators that provided for the payment of FiT or Green Bonuses as of 31 December 2012. RES producers that intended to maintain entitlement to the FiT were compelled to enter into new non-negotiable supply contracts with "Mandatory Purchasers" chosen by the Czech Ministry of Industry and Trade.¹¹⁵ These Mandatory Purchasers were affiliates of the three distribution system operators.¹¹⁶ Second, Act No. 165/2012 introduced an obligation to pay the "negative electricity hourly price", which was designed to be paid to the Mandatory Purchasers by RES operators entitled to the FiT or to be deducted from the payable FiT by the Mandatory Purchasers, if the price of electricity on the daily market had a negative value, i.e., when the grid was experiencing a surplus, causing the market price to turn negative.¹¹⁷ Third, Act No. 165/2012 introduced certain recycling fees for the disposal of photovoltaic panels.¹¹⁸ At the same time, the New Act on Promotion did not affect the tariffs guaranteed to the existing installations under the Act on Promotion.¹¹⁹

176.

On 13 September 2013, Act No. 310/2013 Coll. entered into force. This Act extended the Solar Levy's application after 31 December 2013 and reduced the Solar Levy to 10% for payments received under the FiT system and to 11% for payments received under the Green Bonuses system.¹²⁰

177.

On 5 November 2013, the Czech Deputy Minister of Industry and Trade, Mr. Pavel Šolc, announced that the Czech Republic planned to amend Act No. 165/2012 Coll., stating that there would be introduced:

[…] a new testing mechanism. For bigger power plants, where the volume of the promotion exceeds the amount of EUR 200,000 in 3 years, after a certain time period we will examine whether the beneficiaries of the promotion make unreasonable profit or not, which would have an adverse effect on the market.¹²¹

178.

On 14 February 2014, the new Czech government announced its plans to "review the renewable energy sources promotion system in order to decrease its impacts on the competitiveness of the Czech industry and to support all the efforts leading to rigorous investigation of the promotion payable to the existing photovoltaic power plants."¹²²

179.

In accordance with Article 6(1) of the Act on Promotion and Article 4(7) of Act No. 165/2012 Coll., the ERO, by virtue of an annual "Price Decision", sets the level of FiT and Green Bonuses applicable to RES plants to be connected in the following year and the 2% to 4% yearly FiT increase applicable to plants connected in the previous years.¹²³ On 19 November 2015, the ERO issued Price Decision No. 5/2015, which set the FiT applicable as of 1 January 2016 only to plants commissioned from 2013 to 2015, but not to plants put into operation from 2006 to 2012, including the plant of the Claimant, thereby effectively repealing the FiT altogether.¹²⁴

180.

On 28 December 2015, the Czech Government adopted Regulation No. 402/2015, which overruled ERO Price Decision No. 5/2015 and provided that the incentives to RES plants commissioned before 2013 must be paid, pending any decision by the EC on their compliance with EU state aid law.¹²⁵ In response, on 29 December 2015, the ERO issued Price Decision No. 9/2015, setting FiT and Green Bonuses for RES plants commissioned since 2006, including the Claimant's plant.¹²⁶

181.

Following the introduction of the Solar Levy and the abolition of the Income Tax Provisions, a group of Czech senators ("Petitioners") brought a challenge to the Czech Constitutional Court, seeking the annulment of these measures.¹²⁷

182.

The Petitioners asserted that these measures violated a number of Czech and international legal norms, including the right to property, the right to engage in an enterprise and conduct a business, the principle of the rule of law and the principle of equality before the law.¹²⁸ With respect to the Solar Levy, the Petitioners argued that solar investors:

received very significant assurances from state authorities that they could expect […] revenues from the production of energy under the framework of the regime stipulated by such Act, and such Act did not stipulate that certain of such producers would face a levy obligation […] Such expectations constituted legitimate expectations.¹²⁹

183.

According to the Petitioners, the withdrawal of the Income Tax Provisions, constituted:

a case of arbitrariness on the part of lawmakers, since they could have opted for a vacatio legis period long enough to give the relevant taxpayer that began their entrepreneurial activities at any time during the period when the previously existing legal regulation was in effect the ability to use the tax exemption on an equal footing and for the same period of time.¹³⁰

184.

In response to the Petitioners' complaint, and upon invitation by the Czech Constitutional Court, the Czech Government, including the ERO, and both houses of the Czech Parliament, made submissions opposing the complaint.¹³¹

185.

On 15 May 2012, the Czech Constitutional Court upheld the measures, finding that neither the introduction of the Solar Levy nor the withdrawal of the Income Tax Provisions violated the Czech Constitution as long as Czech law provided for mechanisms to mitigate any "strangling" or "suffocating" effects.¹³²

186.

Having recapitulated the arguments put to it, the Czech Constitutional Court stated, inter alia, that:

The 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.¹³³

187.

The Czech Constitutional Court concluded, inter alia, that:

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.¹³⁴

188.

Following the May 2012 Constitutional Court Judgment, individual photovoltaic investors brought proceedings against their tax administrations, alleging that, in their particular case, the Solar Levy had a "strangling" effect on them.¹³⁵ By late 2013, several cases reached the Czech Supreme Administrative Court as the highest Czech Court competent in taxation matters, which denied all claims, noting, inter alia, that "[t]he Constitutional Court's instruction to take liquidating effects of the solar power levy into account in individual cases can only be carried out under current legislation using the institute of tax remission pursuant" to the Tax Procedure Code.¹³⁶

189.

On 10 July 2014, the Czech Supreme Administrative Court ruled that the Solar Levy was "in nature a decrease in governmental subsidy and not a tax" and therefore it did not cause double taxation on the income of solar electricity producers.¹³⁷

190.

On 18 September 2014, in response to the May 2012 Constitutional Court Judgment, the Czech Financial Administration stated as follows:

Producers potentially affected by the individual effect of the solar levy found by the Constitutional Court to be "strangling" have been and are able to at least mitigate, if not fully eliminate, its impact using standard tools [e.g. tax deferral or payment in instalments] under the Tax Administration Law.¹³⁸

191.

On 8 January 2013, the Czech Republic notified the EC that it had passed the New Act on Promotion ("First Notification").¹³⁹

192.

On 12 June 2014, the EC issued its decision that the financial support foreseen by the New Act on Promotion was granted directly from the State budget and, therefore, involved State aid, but that, by virtue of an exemption, the incentives were still compatible with the internal market.¹⁴⁰

193.

On 11 December 2014, the Czech Republic filed with the EC a second notification of the RES support mechanisms in respect of RES plants commissioned before 1 January 2013 ("Second Notification").¹⁴¹ Upon this notification, the EC opened another preliminary examination into the compatibility of the Incentive Regime with EU State aid law as it was applied between 2006 and 2012.¹⁴²

194.

On 28 November 2016, in response to the Second Notification, the EC decided as follows:

The Commission regrets that the Czech Republic put the aid measure in question into effect in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

However, it has decided, on the basis of the foregoing assessment, not to raise objections to the aid on the grounds that it is compatible with the internal market pursuant to Article 107(3)(c) of the Treaty on the Functioning of the European Union.¹⁴³

195.

The Respondent argues that the Tribunal lacks jurisdiction over all claims brought by the Claimant.¹⁴⁴

196.

The Claimant contends that the Tribunal has jurisdiction over the claims it has brought.¹⁴⁵

197.

The Parties' respective arguments are set out in detail in the sections which follow.

198.

The Respondent argues that the Tribunal lacks jurisdiction over the Solar Levy as this measure is a tax under Czech law for purposes of the ECT's tax exclusion clause set out in Article 21 of the ECT.¹⁴⁶ The Respondent observes that the Claimant itself considered the Tax Incentives to be taxation measures¹⁴⁷ and contends that the only disagreement with the Claimant pertains to the characterization of the Acts which adopted and extended the Solar Levy as "Taxation Measures".¹⁴⁸

199.

The Respondent agrees with the Claimant that Article 31 of the VCLT governs the interpretation of Article 21(7) of the ECT. It submits that the Contracting State parties gave the term "Taxation Measures" a special meaning, whereby, for the determination of the character of a measure as a "provision relating to taxes of the domestic law" within the meaning of Article 21(7)(a)(i) of the ECT, the Tribunal "must look to the domestic law of the Czech Republic".¹⁴⁹

200.

The Respondent contests all of the Claimant's arguments which contradict this proposition for the following reasons (broadly summarized): (1) the use of domestic law to determine the characterization of a measure as a tax is justified, given the express renvoi to domestic law in Article 21 of the ECT and the importance of a state's taxation power, which is admitted by the Claimant;¹⁵⁰ (2) the intention of the ECT's drafters lends support to the need to resort to domestic law, as evidenced by Article 21(5) of the ECT, which calls upon competent domestic tax authorities to state their views as to the limited number of tax-related issues capable of submission to international arbitration;¹⁵¹ (3) the Claimant has not explained why the use of domestic law would undermine the ECT's purpose;¹⁵² and (4) it is not contrary to good faith that states have resort to their own domestic law, for, as a matter of fact, states are free to opt out of international obligations. In any event, the Respondent has not sought to act as judge and jury or to escape its international obligations, as it has accepted that the Tribunal will make the ultimate determination as to whether the Solar Levy meets the definition set out in Article 21(7) of the ECT.¹⁵³

201.

The Respondent, referring to the decision in Emmis and others v. Hungary, argues that the character of the Solar Levy must be established with reference to Czech domestic law. Like any tax, the Solar Levy has a rate, a base and a taxpayer, and was treated as a tax by the Czech legislative, executive and judicial organs. This is evidenced, most notably, by its inclusion in the Tax Administration Law ("TAL") and its characterization by the Czech Constitutional Court as a "tax or fee" within the meaning of Article 11(5) of the Czech Republic's Charter of Fundamental Rights and Freedoms ("Charter"), holding that the Solar Levy, like any other taxes, should be "levied only on the basis of the law."¹⁵⁴ In this connection, the Respondent notes that Article 11(5) of the Charter and Section 2(3) of the TAL are legislative instruments for the purposes of Article 21(7) of the ECT. In response to the Claimant's argument that Article 11(5) of the Charter is inconclusive so far as the question whether the Solar Levy constitutes a tax is concerned, as it refers to "taxes and fees", the Respondent notes that the Claimant does not argue that the Solar Levy is a "fee" rather than a "tax". In addition, the Solar Levy is classified as a tax by the OECD and EUROSTAT. Moreover, the reason for taxes and fees being treated under the same umbrella in the TAL is that Czech legal and accounting practice does not differentiate between taxes and other public charges.¹⁵⁵ Furthermore, the Respondent draws the Tribunal's attention to the fact that the ECT only requires that the Solar Levy be a measure "relating to taxes of the domestic law", which is presently the case as it is designated as a tax in the Czech Republic's Tax Code, is collected as such, and is accounted for and reported as a tax.¹⁵⁶ Hence, in light of the above, the Solar Levy qualifies as a "Taxation Measure" under Article 21(7), and is thus covered by the carve-out in Article 21(1) of the ECT.¹⁵⁷

202.

The Respondent emphasizes that the character of the Solar Levy must be determined by reference to Czech legislation, and not to academic literature. In relation to the place of "academic theory", the Respondent submits that the ECT does not call for an academic exercise, since Article 21(7) of the ECT places exclusive reliance upon legislation and the Contracting States' power to decide what is a tax. In any event, academic theory is unhelpful in this case, given the inherent lack of clarity of the term "taxes", acknowledged in scholarly writing.¹⁵⁸ However, even if the Tribunal were to consider "academic theory" relevant, the Respondent submits that the Solar Levy possesses the six features identified and relied upon by the Claimant as the test of a taxation measure.¹⁵⁹ In particular, it is uncontested that the Solar Levy is obligatory, non-refundable, introduced by law and intended to serve as income of the state budget for the financing of society-wide needs.

203.

In addition to the above, the Respondent claims that the Solar Levy is also non-equivalent. According to the Respondent, this fact is acknowledged by the Claimant's experts, who state that the Solar Levy is "formally indeed non-equivalent," and that "equivalence" exists only "to a certain extent."¹⁶⁰ The Respondent contends that the right to receive the FiT is independent from the Solar Levy "due to the absence of an immediate, direct and concrete consideration in return on the part of the public authority".¹⁶¹ Instead, the right derives from the obligation of compulsory purchasers to purchase RES electricity at a fixed price. Indeed, solar plants installed before the solar boom and producers of non-solar forms of RES electricity are equally entitled to the FiT, but not liable to pay the Solar Levy.¹⁶² The relationship between the Solar Levy and the FiT is confined to the fact that both are charged on the same product, namely electricity produced by solar RES, at an amount which corresponds to a fixed proportion of the price received for such electricity. Similar relations are commonly seen in relation to other taxes, such as VAT, which amounts to a percentage of the value of goods and services the consumption of which is taxed.¹⁶³ In short, payment of the Solar Levy involves no "quid pro quo" in consideration for receiving the FiT.¹⁶⁴

204.

In addition, the budgetary expenditure subsidizing RES actually increased in 2014, whereas the Solar Levy payable by solar generators in receipt of FiT support was reduced by Act 310/2013 Coll. from 26% to 10%, thus illustrating the lack of any correlation.¹⁶⁵ In this vein, the Respondent argues that the amount of the budget subsidy is not calculated by reference to the amounts collected through the Solar Levy and that, unlike the budget subsidy, Solar Levy revenues were a function of the quantity of electricity produced by solar RES producers. While the Solar Levy was originally expected to offset approximately one third of the budgetary expenditure on RES subsidies, this was merely an estimate and, ultimately, no correlation ever existed in practice.¹⁶⁶

205.

Contrary to the Claimant's argument, the Solar Levy is also not a fee. In particular, it is not paid on a transactional basis; it is not "voluntary"; and it is not "irregular".¹⁶⁷ In any case, the Claimant's proposition that the Solar Levy is a fee for receiving the FiT is inconsequential, since the distinction between taxes and fees is of very limited significance under contemporary Czech tax law and practice, and given that fees "relate to" taxes, within the meaning of Article 21(7) of the ECT, to the extent that a fee administered by the TAL is part of the Czech tax system.¹⁶⁸

206.

Moreover, the Solar Levy is not paid for a specific purpose. Leaving aside the irrelevance of legislative reasons for this purpose and the existence of purpose-oriented taxes, as exemplified by road taxes, the absence of a specific purpose is demonstrated by the fact that proceeds of the Solar Levy were deposited into the general treasury account.¹⁶⁹ Given its nature as a revenue raising measure, which was meant to reduce excessive profits, the Solar Levy on the contrary was a tax measure perfectly consistent with bona fide taxation purposes.¹⁷⁰

207.

The Respondent argues further that the Solar Levy is treated as a tax by the Czech judicial organs, most notably by the Constitutional Court in a decision specifically examining the Solar Levy, and the Supreme Administrative Court.¹⁷¹ In particular relation to the decisions of the Supreme Administrative Court, the Respondent emphasizes that the judgment of the Grand Chamber of 17 December 2013 confirmed that the Solar Levy was a tax. That is a ruling which enjoys greater authority than, and is not affected by, those adopted by individual panels, such as the judgment of 10 July 2014 of the Supreme Administrative Court relied upon by the Claimant. To the extent that the latter decision held that the Solar Levy was not of a tax nature, on grounds of its non-equivalence, this conclusion was set out in a "single-paragraph obiter statement" which, in the opinion of the Respondent, resulted from the panel's lack of familiarity with the mechanics of RES support.¹⁷²

208.

Furthermore, the Czech authorities did not argue before the Supreme Administrative Court that the Solar Levy is not a tax and are, thus, not estopped from alleging that it is, in fact, a tax. The Claimant's allegation is based on an unwarranted assumption and disproved most notably by the fact that the dictum that the Solar Levy is not a tax was rendered by the Supreme Administrative Court sua sponte.¹⁷³

209.

The Respondent argues that the Claimant's remaining indicators of the non-tax nature of the Solar Levy are wrong. As for the submission to Parliament of draft Act 402/2010 by the Ministry of Industry and Trade instead of the Ministry of Finance, the Respondent observes that the Ministry of Finance and the Government as a whole were involved in the process, which led to the adoption of the Solar Levy.¹⁷⁴ With regard to the use of the term "levy", the Respondent states that the use of the term resulted from the Ministry of Finance's practice of using different terminology for ad hoc taxes introduced by general legislation. In any event, there are other levies in Czech legislation, most of which are taxes.¹⁷⁵ As for the limited extent of the group of taxpayers, the Respondent observes that there are taxes in the Czech system for the payment of which only several hundred subjects are liable.¹⁷⁶ The Respondent alleges that the acknowledgement of the potential expropriatory effects of the Solar Levy by the Constitutional Court relates to the constitutionality of the measure, not its tax nature. In any event, the Constitutional Court did not find the Solar Levy to be a confiscatory tax.¹⁷⁷ As for the temporary nature of the Solar Levy, the Respondent argues that temporary taxes have been levied in the Czech Republic in the past and that there is no requirement that a measure be indefinite in order to qualify as a tax.¹⁷⁸ From the foregoing, it follows, according to the Respondent, that both the Solar Levy and the Tax Holiday, the character as a tax of which is not in dispute, are taxes.¹⁷⁹

210.

Finally, and in response to the allegation that the Solar Levy was enacted in bad faith, the Respondent submits that the Claimant's allegations of impropriety are unfounded; the Solar Levy applied to all solar producers, regardless of whether they were entitled to investment treaty protection.¹⁸⁰ Referring to the decision of the tribunal in Tza Yap Shum v. Republic of Peru, the Respondent argues that good faith must, in principle, be assumed;¹⁸¹ that, in any case, the Energy Charter Secretariat 2015 publication does not suggest that taxes must be imposed in good faith;¹⁸² and that, even if it were accepted that bad faith was involved, such conduct would only be relevant to the merits,¹⁸³ but it would not affect the character as a tax of the Solar Levy under Czech domestic law. Furthermore, the Respondent submits that no bad faith can be inferred from the use of a mechanism, which the Claimant deems convoluted since, as observed by the tribunal in Invesmart, B.V. v. Czech Republic, not having resort to the most obvious solution is not an automatic indication of bad faith.¹⁸⁴ To conclude, the Respondent requests that the Tribunal decline jurisdiction in relation to the Claimant's ECT claims.

211.

The Claimant challenges the Respondent's objection to jurisdiction, and in particular its submission that the Solar Levy is a tax due to its characterization as such under Czech law and that the VCLT plays no role, since the ECT defines "taxation measure" by express reference to domestic law.¹⁸⁵

212.

Pointing out that what is at issue is the interpretation of a treaty provision, the Claimant argues that the applicable rules of interpretation are contained in Article 31(1) of the VCLT, whereby the definition of "taxation measure" set out in Article 21(7) of the ECT must be interpreted in good faith, bearing in mind the context and the object and purpose of the ECT.¹⁸⁶

213.

In this connection, the Claimant argues that, as recognized by the Respondent, the VCLT is applicable to, and plays a central role in, the interpretation of Article 21 of the ECT.¹⁸⁷ In particular, the Claimant contends that, since the Respondent has failed to establish that a "special meaning" pursuant to Article 31(4) of the VCLT is to be attributed to the term "taxation measures" in Article 21(7) of the ECT, only its "ordinary meaning" is to be taken into account.¹⁸⁸ Furthermore, the Claimant maintains that the renvoi to domestic law does not preclude the application of Article 31(1) of the VCLT to the interpretation of Article 21(7) of the ECT, due to the latter's international nature as a treaty provision.¹⁸⁹

214.

The Claimant contends that the Respondent's interpretation of Article 21(7) of the ECT, according to which a contracting state's mere characterization of a measure as "taxation" would suffice to remove it from the scope of the ECT, is at odds with the ECT's drafters' intention, the good faith standard and the purpose of the ECT. In particular, relying upon the decisions in Yukos Universal Limited v. Russia,¹⁹⁰RoslnvestCo UK Ltd. v. The Russian Federation,¹⁹¹ and Quasar de Valores v. The Russian Federation,¹⁹² the Claimant argues that a good faith interpretation of the ECT tax carve-out is called for, whereby it is confined to bona fide measures. Contracting States are thereby prevented from an otherwise unrestricted freedom to escape their obligations under the ECT.¹⁹³ In this vein, the Claimant maintains that a determination as to the bona fide character of a measure is crucial to establish whether it is a "taxation measure" within the meaning of Article 21 of the ECT and, thus, of relevance not only to the merits of, but also to a tribunal's jurisdiction over, a dispute arising out of such a measure.¹⁹⁴

215.

The Claimant submits that the Solar Levy is not a bona fide taxation measure,¹⁹⁵ since it was not introduced to raise budget revenue, as claimed by the Respondent, but was instead a deliberate use of its power to tax to avoid international responsibility.¹⁹⁶ According to the Claimant a State's authority over taxation matters is not absolute and, thus, an interpretation of the tax carve-out to the effect that reliance is to be placed exclusively upon domestic law would be contrary to the principle of good faith and the ECT's purpose.¹⁹⁷ Furthermore, the Claimant, contesting the relevance of the decisions relied upon by the Respondent, argues that Article 21 of the ECT does not permit a State to opt out of its obligations thereunder, nor does it allow a State to deny the ECT's protection to an investor.¹⁹⁸

216.

The Claimant adds that the lack of good faith on the part of the Respondent is evidenced by the rationale of, and background to, the Solar Levy; the use of taxation as a mechanism to disguise a reduction of the amount of support accorded to solar energy producers; and the inconsistent conduct of the Respondent following the enactment of the Solar Levy.¹⁹⁹

217.

As for the abusiveness of the Respondent's exercise of its taxation power, the Claimant submits that this power was used to adopt a measure, which was clearly not a tax, as evidenced by declarations of the Deputy Environmental Minister and the Minister of Industry and Trade at meetings held by the Economic Coordination Committee and the Economic Committee of the Chamber of Deputies on 15 October²⁰⁰ and 2 November 2010,²⁰¹ respectively. The Claimant does not accept that an attempt to find a lawful solution to a problem is necessarily an indication of good faith, since compliance with domestic law is not an excuse for breaches of international obligations. Also, the Claimant does not accept that the applicability of the Solar Levy regardless of the nationality of solar energy producers demonstrated that their ability to invoke investment treaty protection had not been considered. In this regard, the Claimant highlights that the Respondent sought legal opinions concerning the risks of investment arbitration as a result of the enactment of the Solar Levy.²⁰²

218.

As for the inconsistency of the Respondent's conduct, the Claimant refers to the 10 July 2014 decision of the Czech Supreme Administrative Court, which in the context of a decision addressing the issue of whether, in combination with the corporate income tax, the Solar Levy would have been in breach of the prohibition of double taxation, held that the Solar Levy is not a tax.²⁰³ According to the Claimant, the decision of the Supreme Administrative Court should preclude any further discussion in this arbitration as to the nature of the Solar Levy as a tax under Czech law.²⁰⁴

219.

The Claimant contests the relevance of the rulings relied upon by the Respondent in support of the proposition that, in accordance with Czech case law, the Solar Levy is not a tax. Instead, the Claimant submits that: (1) the question of whether the Solar Levy is a tax was directly addressed by the Supreme Administrative Court and not merely in an obiter portion of the decision; (2) the judgment of the Grand Chamber of 17 December 2013, relied upon by the Respondent, only characterized the Solar Levy as a tax, because it is administered according to the TAL; (3) the decision of the Supreme Administrative Court of 10 July 2014 is not isolated, since several other judgments of Czech courts, including the Constitutional Court and the Second and Fifth Chambers of the Supreme Administrative Court have ruled that the Solar Levy is not a tax, but a de facto reduction of the FiT.²⁰⁵

220.

With regard to the Respondent's purported explanations for the implementation of the Solar Levy instead of a direct reduction of the FiT, the Claimant advances a number of arguments. In response to the proposition that a direct reduction of the FiT would have needed to be much greater than 26%, the Claimant notes that this is unsupported by the facts. In fact, while during the meeting of the Economic Committee of 2 November 2010 an increase of the Solar Levy rate from 26% to 50% was discussed so as to avoid the imposition of a tax on emission allowances, the question of a direct reduction of the FiT was not in issue.²⁰⁶ Also, the Solar Levy is not necessarily more flexible than a reduction of the FiT, nor temporary, and, in any case, a reduction of the FiT did not have to be permanent.²⁰⁷ In addition, the enactment of a direct reduction of the FiT would not have been more cumbersome than the introduction of the Solar Levy.²⁰⁸

221.

The Claimant characterizes the Solar Levy as a reduction of a promised benefit, adopted in the form of a tax for the purpose of taking advantage of the tax carve-out under the ECT. This is allegedly evidenced by discussions in the Czech Parliament prior to the adoption of Act No. 402/2010, most notably during a meeting of the Emergency Coordination Committee held in October 2010,²⁰⁹ and the Respondent's own allegation that the measure was in fact not a tax, made in connection with a challenge to the Solar Levy before the Czech Supreme Court.²¹⁰ The Claimant adds that the Respondent, for this reason, is now estopped from arguing that the Solar Levy is a bona fide tax under international law.²¹¹ For its part, the Claimant also contends that it is not estopped from characterizing the Solar Levy as a non-tax measure, most notably since terms used in the SPV's financial statements are irrelevant for the purposes of determining the nature of the Solar Levy as a tax.²¹²

222.

In addition, the Claimant further contends that the Solar Levy is not a tax under Czech law.²¹³ According to the Claimant, Article 11(5) of the Charter and Section 2(3) of the TAL are irrelevant for the determination of the nature of the Solar Levy, since (1) both provisions and related accounting and budgetary regulations do not distinguish between taxes and fees; (2) Article 2(3) of the TAL contains no general definition of tax, which is absent in the Czech legal system; and (3) in any case, the Czech legislator knowingly employed the label "levy" instead of "tax".²¹⁴

223.

Furthermore, according to the Claimant, the Solar Levy does not possess the six features of a tax, namely, that it is: (1) obligatory, (2) non-refundable, (3) non-equivalent, (4) introduced by law, (5) intended to serve as income, and (6) paid for no specific purpose.²¹⁵ In light of these features, the Claimant puts forward a number of specific arguments, as broadly summarized below.

224.

First, the Solar Levy was enacted and "earmarked" for a specific purpose, namely to offset the costs incurred by the Respondent in connection with the support it had undertaken to provide to solar energy producers without formally reducing the level of tariffs guaranteed to them.²¹⁶ This purpose is clearly indicated by the parliamentary discussions leading to the introduction of Act No. 402/2010. Therefore, the Solar Levy lacks one typical feature of all taxes, according to academic theory.²¹⁷

225.

In this vein, the Claimant argues that the legislative reasons for implementing the Solar Levy are "irrelevant for the purposes of the ‘specific purpose' inquiry". Instead, the Tribunal should focus on the "purpose for which the funds are actually allocated".²¹⁸ The Claimant argues further that the existence of a specific purpose is a mandatory feature of taxes; that the Solar Levy is a de facto reduction of the FiT and not a revenue-raising measure and therefore does not meet the bona fide test as articulated by the Yukos tribunal; and that reliance on the fact that the Solar Levy is collected in a separate account, not administered by the same Ministry in charge of budgetary contributions to the FiT, entails a formalistic distinction and is irrelevant since the cash flows of the Solar Levy and the RES support subsidy are connected through the State budget.²¹⁹

226.

Second, the Claimant argues that the Solar Levy does not meet the non-equivalence requirement, which is a mandatory requirement of all taxes. This entails that no consideration on the part of the State for the payment of a tax must be involved, as acknowledged by all four party experts.²²⁰ According to the Claimant, there was a direct link, or a "quid pro quo", between the Solar Levy and the payment of FiT and Green Bonuses.²²¹ This conclusion finds support in the decision of the Czech Supreme Administrative Court of 10 July 2014, which held that the Solar Levy was not a tax, but a de facto reduction of the FiT and Green Bonuses.²²² The decision, in the Claimant's submission, is thorough and highly authoritative, therefore dealing a fatal blow to the Respondent's argument.²²³ In particular, the decision lends further support to the fundamental character of non-equivalence as a feature of all taxes, and also confirms that the Solar Levy fails to meet the non-equivalence standard, a conclusion shared by Messrs. Borkovec and Frýzek.²²⁴

227.

With respect to certain decisions of the Czech Supreme Administrative Court and the Constitutional Court relied upon by the Respondent,²²⁵ the Claimant contends that only the decision of 10 July 2014 actually analysed the Solar Levy, and that the references to the Solar Levy as a "tax" in the other decisions are either vague or confined to the character as a tax for the purposes of the TAL. In any event, these decisions were without prejudice to the finding of the Grand Chamber of the Supreme Administrative Court which held that, while being a "tax" within the meaning of Section 2(3) of the TAL, the Solar Levy resulted in a de facto decrease of the level of support to solar energy producers.²²⁶

228.

The Claimant further contends that the Respondent is estopped from claiming in these proceedings that the Solar Levy is not linked to the FiT, given certain statements of the Czech Ministry of Finance before the Constitutional Court.²²⁷ In this regard, the Claimant contends that the Respondent's view that the only link between the FiT and the Solar Levy is that "the former is the taxable base of the latter"²²⁸ is disproved by the referenced statements of the Minister of Finance, to the effect that income from the Solar Levy "serves to compensate the additional expenses associated with the obligation to purchase electricity from solar radiation" and that the FiT and the Solar Levy "are inherently tied together, since they are connected through the fiscal aspects."²²⁹

229.

Third, five further indicators of the non-tax nature of the Solar Levy exist:²³⁰ (1) the enactment of Act No. 402/2010 differed from the usual legislative process, as the bill was submitted to Parliament by the Ministry of Industry and Trade, unlike most taxation measures which are presented by the Ministry of Finance;²³¹ (2) the Solar Levy applies to "a narrow group of taxpayers", composed of solar energy producers identified on the basis of their date of connection to the grid, a non-tax criterion applied at the discretion of grid operators;²³² (3) the Solar Levy was temporary, which further demonstrates the non-tax nature of the Solar Levy,²³³ (4) the term "levy" was employed, instead of "tax", without explanation;²³⁴ and (5) the Solar Levy was not proportional, as it may have "strangling" or "liquidating" effects according to the Czech Constitutional Court.²³⁵ In addition, the possession of features present in other types of payments, such as certain "fees", does not render the Solar Levy a tax, nor do accounting, budgetary and statistics rules whereby the Solar Levy is treated as a tax.²³⁶

230.

The Claimant submits that the definition of tax set out in the decisions in EnCana Corporation v. Republic of Ecuador, Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador, and Burlington Resources Inc. v. Republic of Ecuador, each brought against Ecuador under different U.S. and Canadian treaties, is not applicable to the Solar Levy, since the tax carve-outs involved in those treaties did not define "tax" or "taxation measure", unlike the ECT.²³⁷ Even assuming that the definition set out in these cases is applicable, the Claimant argues that the Solar Levy, despite having been introduced by law, does not meet the other requirements of that definition, since it is unclear that the narrow group of taxpayers amounts to a "class of persons"; no payment was made to the State, which merely acted as collecting agent but did not retain any funds; and no public purpose existed.²³⁸

231.

Preliminarily, the Tribunal notes that the Parties' disagreement regarding the ECT's tax carve-out is limited to the question whether the Solar Levy constitutes a "Taxation Measure" within the meaning of Article 21 of the ECT and, as such, is excluded from the Tribunal's jurisdiction under the ECT. As the Respondent contends, the Claimant "does not deny that the Tax Incentives provided for by the Act on Income Tax are ‘taxation measures' covered by the carve-out," and that "Claimant's only disagreement with the Czech Republic's analysis relates to the characterization – for purposes of the ECT – of the Acts that introduced and extended the Solar Levy as "Taxation Measures,"²³⁹ a proposition that the Respondent repeated at the Hearing²⁴⁰ and that the Claimant did not challenge at any time.

232.

As a consequence, the Tribunal has little doubt that the Income Tax measures and the Shortened Depreciation fall within the ECT's tax carve-out. Accordingly, the Tribunal accepts that it lacks jurisdiction to hear Claimant's claims regarding those two measures under the ECT. The Tribunal's analysis is therefore limited to the question whether it has jurisdiction under the ECT over the Claimant's claims related to the Solar Levy.

233.

The Tribunal's analysis begins with the burden of proof. The "Taxation" provision of the ECT relied upon by the Respondent is an exception to the more general provisions of the ECT. As such, it is clear that the Respondent bears the burden of proof of establishing that the Solar Levy may be characterized as a "provision relating to taxes of the domestic law" within the meaning of Article 21(7)(a)(i) of the ECT.

234.

This allocation of the burden of proof is consistent with the text of Article 21 of the ECT, which provides in relevant part: "Except as otherwise provided in this Article, nothing in this Treaty shall create rights or impose obligations with respect to Taxation Measures of the Contracting Parties." It is also consistent with the character of Taxation Measures as an exception to the more general terms of the ECT. The Respondent indeed does not dispute that it bears the burden of proof that the Solar Levy constitutes a "tax" or "Taxation Measure" within the meaning of Article 21.

235.

In the Tribunal's view, the Respondent has not discharged this burden of proof. As discussed below, the Tribunal is not convinced that the Solar Levy constitutes a "tax" as a matter of Czech law, as principally contended by the Respondent. Likewise, even apart from Czech law, the Tribunal is not persuaded that the Solar Levy may be characterized as a tax or Taxation Measure within the meaning of Article 21 of the ECT. As a consequence, the Tribunal concludes that it does not lack jurisdiction over the Claimant's claims related to the Solar Levy under the ECT on this ground.

236.

First, the Respondent's primary contention is that the Tribunal "must look to the domestic law of the Czech Republic"²⁴¹ in determining whether the Solar Levy is a tax within the meaning of Article 21 of the ECT. The Tribunal is satisfied that the application of the ECT's tax carve-out is conditional on the State invoking the Article 21 exception, characterizing the putative "Taxation Measure" as a tax in nature and substance as a matter of its domestic law.

237.

It is undisputed, and the Tribunal agrees, that Article 21 must be interpreted in accordance with the standards set out by the VCLT, particularly in its Article 31, and international law generally.²⁴² This requires that effect be given to Article 21(7)'s renvoi to the domestic law of the Contracting Party invoking Article 21. Indeed, Article 21(7)(a)(i) of the ECT refers expressly to a "provision relating to taxes of the domestic law of the Contracting Party" (emphasis added). The Tribunal shares the Respondent's view that this "means necessarily that the relevant assessment must be made under the domestic law of the respondent State."²⁴³

238.

This interpretation is consistent with the text of Article 21(7). It is, in the Tribunal's view, also consistent with Article 21's objective to permit, within the limits of the provision, Contracting Parties to carve-out measures from certain ECT standards – that is to "exclude a taxation measure from the coverage of the standards of protection."²⁴⁴ Critically, however, unless a Contracting State has itself chosen to characterize a measure as a tax measure in its own domestic legal order, that measure does not fall within the scope of Article 21 of the ECT. In short, Article 21 applies, prima facie, only to those measures which constitute taxation measures within the legal order of the State invoking the Article 21 exception. (As discussed below, there are also international limits imposed by Article 21 on those measures which a Contracting State may define as tax measures as a matter of its domestic law, but this is a separate and subsequent issue.)

239.

Applying this analysis, the Tribunal is not persuaded that the Respondent has discharged its burden of proving that the Solar Levy was a tax as a matter of domestic Czech law. Rather, the expert evidence and other materials before the Tribunal indicate that the Solar Levy was regarded as a tax as a matter of Czech law only for certain limited purposes, but as something other than a tax for other, more significant, purposes. In the Tribunal's view, this is insufficient to justify a conclusion that the Solar Levy was characterized by Czech law as a tax within the meaning of Article 21 of the ECT.

240.

As a preliminary matter, the Tribunal notes that the Solar Levy was titled just that – the "Solar Levy" – not the "Solar Tax" or the like. Where the inquiry is whether a measure is characterized as a tax or taxation measure under Czech law, it is of some significance that the measure was, in contrast to many other fiscal measures in the Czech Republic, not denominated by the Czech legislature as a tax. If this were the only consideration militating against characterization of the Solar Levy as a tax under Czech law, the Tribunal would be reluctant to attach dispositive weight to it. However, as discussed below, there are other, more substantial, considerations that point against characterization of the measure as a tax under Czech law.

241.

Most importantly, the Tribunal notes that the 10 July 2014 decision of the Czech Supreme Administrative Court held that, for double taxation purposes, the Solar Levy is not a tax under Czech law. The Court addressed the question whether, combined with the corporate income tax, the Solar Levy would have entailed an unlawful double taxation, and rejected that conclusion, holding that the Solar Levy was not a tax, but rather "in nature" a reduction of the government subsidy (FiT and Green Bonuses).²⁴⁵ The Supreme Administrative Court reasoned that "[t]he subject of the [Solar Levy] is the amount resulting from the consideration of stipulating the amount of government support for this type of economic activity,"²⁴⁶ which led it to conclude that the Solar Levy lacked the essential feature of "non-equivalence," which in its view was necessary for categorization of the measure as a "tax" under Czech law.²⁴⁷

242.

There is no dispute that the Czech Supreme Administrative Court was the Czech Republic's highest judicial authority on the (non-constitutional) questions it addressed regarding the nature of the Solar Levy. In its 10 July 2014 decision, the Court specifically addressed the nature and substance of the Solar Levy. The Tribunal has little doubt that this characterization was not an obiter statement, but a necessary element in the Court's holding.²⁴⁸ The Tribunal also notes that other judgments of Czech courts, including the Constitutional Court and Chambers of the Supreme Administrative Court have likewise found the Solar Levy to be, in essence, a reduction of the FiT, not a tax.²⁴⁹

243.

Given the foregoing authorities, the Tribunal would be very reluctant to adopt a different conclusion as to the nature and substance of the Solar Levy under Czech law. In particular, the Tribunal is not persuaded by the argument that the Czech legal system does not assign judicial decisions (or decisions by courts other than the Constitutional Court) erga omnes effect or recognise them as sources of law.²⁵⁰ That is not uncommon in civil law jurisdictions. More importantly, as the Respondent's expert conceded at the Hearing, the formal status and effect is in no way indicative of the interpretative authority that Supreme Administrative Court judgments have in the Czech domestic legal system: "Although the decisions of the Supreme Administrative Court are not considered a formal source of law in the Czech Republic, as a civil law country which does not have the system of court precedents, an established and long-term adjudicator, which means case law, is usually considered to be an interpretative guide which may have a relatively high level of authority."²⁵¹

244.

The Tribunal considers that for the characterization of the Solar Levy in the Czech legal order, Czech judicial decisions, including those of the Supreme Administrative Court, offer the best available guidance, and it therefore attaches particular weight to them.

245.

The Tribunal draws further comfort in reaching this conclusion from the fact that the Respondent itself contended, through its Ministry of Finance, that the Solar Levy was not a tax in proceedings before the Czech courts. In particular, the Czech Finance Ministry argued before the Czech Constitutional Court that the Solar Levy was "aimed to decrease the economic feed-in tariffs"²⁵² and that "from the material perspective, the introduced measures [including the Solar Levy] are considered a reduction of subsidy"²⁵³ In the Tribunal's view, these characterizations are entirely consistent with the Supreme Administrative Court's 10 July 2014 decision that the Solar Levy was a de facto reduction of the FiTs, rather than a tax.

246.

The Tribunal is not convinced that it should attach comparable weight to the various decisions on which the Respondent relies to argue that the Solar Levy was a tax under Czech law. These judicial decisions focus on determining whether or not the Solar Levy is governed by the procedural and administrative provisions of the TAL and that it complies with the requirements of Article 11(5) of the Charter.²⁵⁴ It is undisputed that the TAL's definition of "tax" applies to a broad variety of public charges, including administrative fees, fines and other charges which are not commonly considered taxes under Czech law.²⁵⁵ It is also undisputed that Article 11(5) of the Charter is applicable not only to taxes, but also to fees.²⁵⁶ In light of the foregoing, in the Tribunal's view, these authorities only demonstrate that the Solar Levy was established in compliance with the Charter's legal constraints and administered in accordance with the TAL's procedural requirements, applicable to both taxes and other fees. In the Tribunal's view, these conclusions are certainly not dispositive of the proper characterization of the Solar Levy and they do not diminish the persuasiveness of the Supreme Administrative Court's 10 July 2014 decision in the present case.

247.

The Tribunal reaches the conclusion that the Solar Levy does not constitute a tax under Czech law primarily on the basis of the Czech judicial decisions addressing its characterization. The Tribunal shares the Respondent's view that, in these particular circumstances, "[a]cademic literature […] cannot be determinative as to whether a particular measure is legally a tax."²⁵⁷ The academic literature which addresses the nature and substance of the Solar Levy under Czech Law and which is relied on by the Parties fails to engage with a number of the above referenced judicial decisions.²⁵⁸ In these circumstances, the Tribunal is not persuaded that it should attach decisive weight to any of the academic commentary in the record, or that any of this commentary displaces the Supreme Administrative Court's characterization of the Solar Levy.

248.

In summary, the Tribunal is not persuaded that the Respondent has discharged its burden of proving that the Solar Levy was characterized as a tax under Czech law. In its view, the weight of the evidence is that the Solar Levy was regarded as something other than a tax and was not supportive of a conclusion that it was a measure to which the carve-out of Article 21 of the ECT is applicable.

249.

Second, and independently, the Tribunal is also not persuaded that the Solar Levy is a tax or taxation measure within the limits contemplated by Article 21 of the ECT.

250.

As discussed above, Article 21 excludes specified tax measures from the scope of the ECT, but only in so far as that measure is characterized as a tax measure under the domestic law of the State invoking the ECT's tax carve-out. Unless a measure is regarded as a tax measure by the State which has enacted it, and which relies upon it under Article 21, neither the text nor object and purpose of Article 21 are satisfied.

251.

In addition, however, the Tribunal also concludes that a measure characterized as a taxation measure by a Contracting Party will only be excluded from the scope of the ECT, if it falls within the limits of legitimate regulatory measures provided by Article 21 of the ECT itself (as well as customary international law).²⁵⁹ In this regard, Article 21 imposes implicit limits on those measures which may be invoked by a Contracting Party under the ECT's tax carve-out. Accepting the existence of international limits on the Contracting Parties' right to exclude taxation measures from certain provisions of the ECT does not strip the Contracting Parties from one of their "most quintessential sovereign powers."²⁶⁰ Instead, it acknowledges that any sovereign prerogative has its limits, which are, in the present case, imposed by the text and purposes of Article 21 of the ECT. The Contracting Parties are, of course, free to make use of their regulatory power and adopt measures in fiscal matters. They are, however, limited in their right to invoke such measures under the ECT.

252.

A contrary conclusion, that is, finding that the definition of tax measures in Article 21 of the ECT was not subject to any inherent limits, would empower Contracting Parties to define unilaterally which measures fall within the ECT's protective scope. The Tribunal does not consider that the drafters of Article 21 intended such a result. Moreover, this would contravene the object and purpose of the ECT, which is to establish uniform standards among the Contracting Parties. This is an aim to which Article 21 is clearly intended to be an exception, since its scope is specifically limited to tax measures. The Tribunal is persuaded that Article 21 imposes international limits on what may constitute a tax measure for these purposes.

253.

Article 21's limits are necessarily implied as the provision itself does not set out an explicit international definition of "Taxation measures." There is, however, no need for the Tribunal to provide a comprehensive definition. It suffices for the Tribunal to address the facets of Article 21's limits, which it considers relevant in the present case.

254.

In the Tribunal's view, Article 21 was not intended to exclude from the ECT's scope measures the main objective of which was other than that of the raising of general revenue for the State,²⁶¹ and which were formulated and structured as taxation measures for a particular ulterior reason (such as, here, reducing the risk of legal challenges).

255.

Although not dependent upon a finding of bad faith, this conclusion is consistent with the principle that treaty obligations must be interpreted, and performed, in good faith.²⁶² The Tribunal shares the view that: "The principle of good faith has long been recognized in public international law, as it is also in all national legal systems. This principle requires parties ‘to deal honestly and fairly with each other, to represent their motives and purposes truthfully, and to refrain from taking unfair advantage …' Nobody shall abuse the rights granted by treaties, and more generally, every rule of law includes an implied clause that it should not be abused."²⁶³

256.

The Tribunal considers these principles particularly significant under the ECT. The purpose of the ECT was to "promote long-term cooperation in the energy field"²⁶⁴ and the treaty was designed to promote transparency, fairness and stability. These considerations underscore the importance of good faith in the application of Article 21 to a Contracting Party's regulatory measures.

257.

In light of these principles, the Tribunal takes the view that the Solar Levy falls outside the scope of Article 21 of the ECT. The Tribunal attaches particular weight to statements made at the time of the enactment of the Solar Levy, which clearly evidence that the Solar Levy's main objective was to reduce FiTs payable to certain solar energy producers, and not the general raising of state revenue. Importantly, these statements also evidence that the Solar Levy was structured, in many respects, as a tax for a particular reason, namely to avoid claims against the Czech Republic under the ECT. By way of example:

(a) 23 September 2010 Emergency Coordination Committee: "More stringent measures that would put the support of RES, and especially PVPP to an end" gave rise to a "risk of arbitration"; Committee charged with deciding "whether legal analysis of potential arbitrations with the assessment of risks and costs for the state budget if the proposal for more stringent measures is passed, e.g., by adopting the change in the feed-in tariff for RES."²⁶⁵

(b) 15 October 2010 Emergency Coordination Committee: "Deputy Environmental Minister Bízková stated that it is necessary to find a formally correct mechanism for reduction of the support of RES from photovoltaic power plants, such that it cannot be legally contested."²⁶⁶

(c) 2 November 2010 Economic Committee of the Chamber of Deputies: "The issue of arbitrations in general is absolutely erratic [sic]. […] I declare that it will reduce the amount of intended support to make it bearable for the Czech Republic and for electricity consumers in the Czech Republic. This method – through the withholding tax – is not just a retroactive correction of support. One may argue as to whether or not this is retroactive. Nonetheless, it is a similar situation as if you changed the conditions for investors by increasing the income tax. From the arbitration perspective, they will strive to advocate the principle on which the support for RES has been based, i.e., their 15-year payback period […] the rest is the question of tax regimes – this is the responsibility of each country, and changes in tax rates should not be challenged in arbitrations."²⁶⁷

(d) 29 November 2010 Senate Session: "I would like to say that, explicitly, when it comes to the relation of taxes in contracts, in agreement on the protection and support of investments respectively, there is usually the clause explicitly exempting the tax issues from the contracted subjects."²⁶⁸

(e) Ministry of Finance opinion to Czech Constitutional Court: "The state uses the [Solar Levy] measures […] to regulate prices"²⁶⁹ and "Introduction of the levy […] is aimed to decrease the economic feed-in tariffs."²⁷⁰

(f) Chairman of ERO: "it would be appropriate to reduce the FiT for photovoltaic power plants […] much more but ERO was not allowed to do so."²⁷¹

258.

The Tribunal accepts that one purpose of the Solar Levy was to raise revenue for the State (to finance the subsidies to solar energy producers).²⁷² Most importantly, however, the Solar Levy was structured to adjust the level of the FiT payable to certain renewable energy producers rather than to raise revenue. This is evidenced, in the Tribunal's view, by the unusually narrow class of persons subject to the Solar Levy; the method of calculating the Solar Levy; and the possibility that the Solar levy could not only be paid quarterly by the solar energy producers, but could also be withheld from the FiTs paid to those producers.

259.

Despite this, the Solar Levy was structured, in a number of respects, to resemble a tax; as the Respondent correctly observes, the Solar Levy did not formally reduce the FiT, was imposed (like many taxes) on a specified base with specified rates and was collected pursuant to the TAL. In the Tribunal's view, however, the main reason for these characteristics, as evidenced by the statements quoted above, was an effort to bring the Solar Levy within the scope of Article 21 and thereby avoid the restrictions of the ECT.

260.

The Tribunal again notes the 10 July 2014 decision of the Czech Supreme Administrative Court, and the submissions of the Czech Ministry of Finance to the Czech Constitutional Court, concluding that the Solar Levy was a de facto reduction of the FiTs payable to certain renewable energy producers. In the Tribunal's view, the Supreme Administrative Court's analysis is persuasive: for the reasons outlined above, the main focus of the Solar Levy was the reduction of certain FiTs, as evidenced by both the measure's structure and the parliamentary statements made in connection with its enactment.

261.

The Tribunal emphasizes that this case does not involve conduct comparable to that in RoslnvestCo, and Quasar de Valores. There is no suggestion that the Respondent used its tax authority to target political opponents, to seize control of major economic enterprises or to accomplish objectives unrelated to fiscal and budgetary issues. The Respondent's conduct here is simply not of the same character, and it did not act abusively, duplicitously or with similar bad faith.

262.

Having said this, as discussed above, the nature and objectives of the Solar Levy are such that it does not fall within the definition of a tax measure under Article 21. As its structure and legislative history make clear, the Solar Levy was not designed primarily to raise revenue, but instead to reduce the FiTs for a specific set of renewable energy producers, with the Solar Levy being structured, in many respects, as a tax in an attempt to reduce the risk of legal challenges. This was not the purpose of the ECT. If the Solar Levy were to be exempted from the scope of the ECT, the treaty's object and purposes would be materially frustrated.

263.

On 6 March 2018, the Grand Chamber of the Court of Justice of the European Union ("ECJ" or "CJEU") rendered its judgment in Slovak Republic v. Achmea BV.²⁷³ In the operative part of the judgment, the ECJ ruled that:

Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.²⁷⁴

264.

Article 267 of the Treaty on the Functioning of the European Union ("TFEU") provides:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

265.

Article 344 of the TFEU reads:

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.

266.

The Parties disagree on the impact of the Achmea judgment on this Tribunal's jurisdiction. The Respondent argues that the Tribunal "has no jurisdiction to hear the captioned matters because the [Respondent's] consent to arbitration under the relevant treaties is ineffective under applicable EU law, as conclusively determined in the Achmea Judgment."²⁷⁵ The Claimant contends that "the Achmea judgment does not affect [the Tribunal's] jurisdiction."²⁷⁶

267.

In particular, the Tribunal invited submissions from the Parties on the following issues:

1. Whether the Achmea judgment is dependent on the specific wording of the BIT that was at issue in the case before the ECJ and how it relates to the BITs at issue in the present proceedings;

2. Whether and how the Achmea judgment applies in arbitrations where the arbitral seat is outside of the EU, including in particular the impact, if any, of Article 344 TFEU on the validity of an intra-EU BIT jurisdiction clause for an arbitral tribunal sitting outside of the EU;

3. Whether and how the Achmea judgment applies to the Energy Charter Treaty;

4. Whether and how the Achmea judgment actually impacts upon the jurisdiction of an arbitral tribunal sitting outside of the EU, as distinct from the enforceability of awards within the EU;

5. How the Achmea judgment fits in, if at all, with Articles 59 and 30 of the Vienna Convention on the Law of Treaties;

6. The relevance of Articles 27 and 46 of the Vienna Convention on the Law of Treaties for the present arbitrations;

7. How Swiss courts and Swiss scholarship have considered the position of EU law in a legal universe consisting of international law and domestic law;

8. The impact, if any, of Article 177(2) of the Swiss Federal Code on Private International Law; and

9. The role of waiver / estoppel, including in light of Article 186(2) of the Swiss Federal Code on Private International Law, in this context.

268.

According to the Respondent, the Achmea judgment is not limited to the specific wording of Article 8 of the Czech and Slovak Federative Republic-Netherlands BIT ("CSFR-Netherlands BIT") at issue before the ECJ, but extends to similar provisions in other investment treaties, including those applicable to this proceeding.²⁷⁷ This is because the question answered by the ECJ in Achmea "was worded to cover, in a general manner, investor-State provisions ‘in a bilateral investment protection agreement between Member States of the European Union (a so-called intra-EU BIT).'"²⁷⁸

269.

In addition, the Respondent notes that the wording of Achmea applies to "(i) ‘any provision in an international agreement' (ii) ‘concluded between EU Member States' (iii) ‘under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal."²⁷⁹ As the BIT and Article 26 of the ECT fulfil these criteria, the Achmea judgment is also applicable to this case.

270.

In the Respondent's submission, the "BIT provisions at issue in this proceeding also are squarely captured by the ECJ's underlying ratio decidendi" in Achmea.²⁸⁰ Specifically, the Respondent takes the view that the need to protect the effectiveness of EU law by disallowing "any ‘outsourcing' to non-EU judicial fora of disputes that are capable of pertaining – even potentially – to regulatory and legislative powers of the EU and its Member States in matters coming within the scope of EU law" applies to any arbitration clauses similar to Article 8 of the CSFR-Netherlands BIT.²⁸¹ Such clauses undermine the autonomy of EU law, because (1) the disputes which the tribunal in question is called on to resolve "are liable to relate to the interpretation or application of EU law"; (2) the tribunal is not "situated within the judicial system of the EU," and, in particular, cannot "be regarded as a court or tribunal of a Member State within the meaning of Article 267 TFEU"; and (3) an award made by such a tribunal is not "subject to review by a court of a Member State, ensuring that the questions of EU law which the tribunal may have to address can be submitted to the Court by means of a reference for a preliminary ruling."²⁸²

271.

The Respondent thus argues that Article 10 of the BIT and Article 26 of the ECT are equally incompatible with EU law as they may also require the Tribunal to interpret or apply EU law in resolving the dispute.²⁸³ The Respondent rejects the Claimant's argument that EU law would not be relevant to the present dispute, because the BIT does not contain an express choice of law provision.²⁸⁴ The Respondent highlights that the BIT is not a "self-contained legal framework, isolated from international and domestic law"²⁸⁵ and that the Tribunal has to decide the dispute on the basis of all relevant rules of international law, including the TFEU.²⁸⁶

Photovoltaik Knopf Betriebs v. The Czech Republic

Documents of the case

Lawyers, other representatives, expert(s), tribunal’s secretary

Award

I. INTRODUCTION

A. THE PARTIES

B. BACKGROUND TO THE DISPUTE

II. PROCEDURAL HISTORY

A. INITIATION OF THE ARBITRATIONS

B. CONSTITUTION OF THE TRIBUNAL

C. COMMENCEMENT OF THE PROCEEDINGS AND PLACE OF ARBITRATION

D. EUROPEAN COMMISSION INTERVENTION, AND CONFIDENTIALITY

E. DISCLOSURE BETWEEN TRIBUNALS

F. DOCUMENT PRODUCTION REQUESTS

G. FURTHER SUBMISSION BY THE PARTIES

H. HEARING

I. POST-HEARING PROCEEDINGS

III. THE PARTIES' REQUESTS FOR RELIEF

A. THE CLAIMANT'S REQUESTS

B. THE RESPONDENT'S REQUESTS

IV. STATEMENT OF FACTS

A. THE INTRODUCTION OF THE INCENTIVE REGIME FOR RENEWABLE ENERGY SOURCES ("RES REGIME")

B. THE CLAIMANT'S INVESTMENT IN THE CZECH REPUBLIC

C. AMENDMENTS TO THE RES REGIME THAT RESULTED IN THE ALLEGED VIOLATIONS OF THE CLAIMANT'S RIGHTS UNDER THE BIT AND/OR THE ECT

D. REVIEW OF THE RESPONDENT'S AMENDMENTS TO THE RES REGIME BY THE CZECH COURTS

E. THE EC'S DECISIONS ON COMPATIBILITY OF THE RES REGIME WITH EU STATE AID LAW

V. THE JURISDICTION OF THE TRIBUNAL

A. WHETHER THE SOLAR LEVY IS A TAX FOR THE PURPOSES OF THE ECT TAX CARVE-OUT (ARTICLE 21 ECT)

1. The Respondent's Position

2. The Claimant's Position

3. The Tribunal's Decision

B. WHETHER THE TRIBUNAL HAS JURISDICTION IN A DISPUTE BETWEEN EU INVESTORS AND EU MEMBER STATES

1. Whether the Achmea judgment is dependent on the specific wording of the BIT that was at issue in the case before the ECJ and how it relates to the BITs at issue in the present proceedings

(a) The Respondent's Position

Hans van Houtte	President
Toby Landau	Appointed by the State
John Beechey	Appointed by the investor
Gary B. Born	Appointed by the investor (replaced)
Doak Bishop	Appointed by the investor (replaced)