Photovoltaik Knopf Betriebs v. The Czech Republic

Photovoltaik Knopf Betriebs-GmbH v. The Czech Republic PCA Case No. 2014-21
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Type of case:
Investor-State
Date of introduction:
22 Apr 2014
Status of the case:
Decided in favor of State
Claimant’s country of origin:
Germany
Respondent:
Czech Republic
Institution:
PCA (Permanent Court of Arbitration)
Seat of arbitration:
Geneva
Applicable treaties:
Czech Republic - Germany...
The Energy Charter Treaty...

Documents of the case

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

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

Award

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.

I. INTRODUCTION

A. THE PARTIES

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.

B. BACKGROUND TO THE DISPUTE

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").

II. PROCEDURAL HISTORY

A. INITIATION OF THE ARBITRATIONS

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.

B. CONSTITUTION OF THE TRIBUNAL

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.

C. COMMENCEMENT OF THE PROCEEDINGS AND PLACE OF ARBITRATION

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.

D. EUROPEAN COMMISSION INTERVENTION, AND CONFIDENTIALITY

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.

E. DISCLOSURE BETWEEN TRIBUNALS

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.

F. DOCUMENT PRODUCTION REQUESTS

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.

G. FURTHER SUBMISSION BY THE PARTIES

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.

H. HEARING

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

I. POST-HEARING PROCEEDINGS

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.

III. THE PARTIES' REQUESTS FOR RELIEF

A. THE CLAIMANT'S REQUESTS

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

B. THE RESPONDENT'S REQUESTS

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

IV. STATEMENT OF FACTS

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

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

B. THE CLAIMANT'S INVESTMENT IN THE CZECH REPUBLIC

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

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

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

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

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

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

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

V. THE JURISDICTION OF THE TRIBUNAL

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.

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

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.

2. The Claimant's Position

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

3. The Tribunal's Decision

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.

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

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.

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

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
272.
In addition, the Tribunal is not "a court or tribunal of a Member State" and as a result cannot refer a question concerning the interpretation of EU law to the ECJ.287 The Tribunal's award will be final and sufficient judicial remedies against a potential breach of EU law will not be available.288 This is especially true in this proceeding, which is seated in Switzerland and, therefore, outside the EU.289
273.
According to the Respondent, the aptness of a broad reading of the Achmea judgment is confirmed in the Opinion of Advocate General Wathelet and in the academic literature.290
274.
The Respondent further rejects the Claimant's argument that this Tribunal should disregard the ECJ's treaty interpretation in Achmea in favour of an interpretation that is in line with international law principles of treaty interpretation and rely on "better reasoned"291 parts of the Opinion of the Advocate General Wathelet.292
275.
The Respondent concludes that the Achmea judgment "is not dependent on the specific wording of the CSFR-Netherlands BIT [and] applies with equal force" to this arbitration,293 and that "there can be no doubt that the BIT's dispute resolution clause [is] in conflict with the TFEU."294

(b) The Claimant's Position

276.
The Claimant summarizes its position as follows:

The Achmea judgment concerned a BIT, the CSFR-Netherlands BIT, under which EU law was applicable law pursuant to its choice-of-law clause. Unlike that BIT, the BITs invoked by the Claimants do not contain any such clause.295

277.
For the Claimant, the Achmea judgment only applies to instances in which a tribunal may have to decide on substantive issues of EU law. In contrast, in the present dispute, EU law is not part of the applicable law. Therefore, an interpretation of EU law by the Tribunal "cannot have the effect of compromising the effectiveness of EU law", especially considered that the Tribunal is seated outside of the EU.296
278.
The Claimant stresses that the present dispute cannot be decided on the basis of EU law. Since the BIT "do[es] not refer to it, either directly or indirectly", EU law does not qualify as "customary international law and general principles of law" forming the lex generalis of the dispute.297 For the Claimant, EU law is only relevant in the present dispute as a rule of interpretation under Article 31(3)(c) of the VCLT.298 The Claimant rejects the Respondent's argument that, even in the absence of an express choice of law clause, EU law may still form part of the applicable international law.299
279.
The Claimant further argues that the Achmea judgment is "deeply flawed" since the ECJ "fails to consider the basic international law principles of treaty interpretation, and in particular the one of ‘systemic integration' embedded in Article 31(3)(c) VCLT".300 Therefore, according to the Claimant, no authority can be accorded to the ECJ's conclusion that intra-EU BITs conflict with EU law.301 In particular, the ECJ's holding in Achmea is incorrectly based on the potential, rather than on the actual, application of EU law on the part of the Tribunal.302 Additionally, the ECJ wrongly affirmed that the Achmea tribunal would have been unable to request a preliminary ruling from the ECJ.303 The ECJ in Achmea could instead have "avoided a conflict of norms by recognizing that intra-EU BIT tribunals qualify as courts or tribunals of EU Member States under Article 267 TFEU."304 In any event, no interpretation of EU law arises out of this dispute that could be referred to the ECJ, as the issue of the jurisdiction of the Tribunal is a matter of international law.305 Finally, the ECJ's reasoning concerning "the alleged limited review of intra-EU BIT awards under national law and on a supposed distinction with commercial arbitration" is flawed, as the principle of party autonomy is the basis of both investment treaty and commercial arbitration.306
280.
The Claimant emphasises that the Tribunal is not asked to "second-guess the Court", but rather to "ensure that the relation between EU law and international treaties is viewed not through the prism of the primacy of EU law but under general international law, which does not endorse such primacy".307 According to the Claimant, it follows that Articles 344 and 267 TEFU, on their ordinary meaning, do not prohibit investor-State arbitration.
281.
In any case, the Clamant submits that "even if EU law were applicable law under the BITs at hand (quod non), it would only be so in relation to merit issues."308 The Claimant argues that the alleged conflict between EU law and investment treaties is one of jurisdiction, connected to states' consent to arbitration.309 As the Tribunal's jurisdiction derives from the BIT and the ECT, neither of which refers explicitly to EU law, the Tribunal is not bound by the Achmea judgment. In the absence of "a clear positive rule of EU law prohibiting arbitration between an EU Member State and a national of another EU Member State",310 the Tribunal should decide whether a conflict between the BIT, the ECT and EU law exists only on the basis of international law.311

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

(a) The Respondent's Position

282.
The Respondent submits that the seat of arbitration and the procedural law under which the arbitration is conducted are irrelevant to the application of the Achmea judgment.312 This is so, because Article 344 of the TFEU prohibits EU Member States from submitting a dispute concerning the interpretation or application of EU law to any external dispute settlement entities, regardless of the latter's governing procedural law.313 According to the Respondent, to interpret the Achmea judgment otherwise would be contrary to its clear language and its purpose to ensure the effectiveness of EU law.314
283.
The Respondent notes that the ECJ decided that arbitral proceedings lack adequate safeguards to ensure the "full effectiveness of EU law", notwithstanding the fact that the arbitration giving rise to the Achmea judgment had its seat in Germany, an EU Member State. This reasoning, so argues the Respondent, applies a fortiori to this arbitration, in which the Tribunal's award will be subject to review by the courts of a non-EU country (i.e., Switzerland).315

(b) The Claimant's Position

284.
The Claimant notes that the arguments elaborated in its answer to Question 1 "are even more pertinent, because the seat of these arbitrations is in Switzerland, outside the EU." From the Swiss law perspective, EU law is res inter alios acta and in no way can be accorded primacy over international law. Under Swiss international arbitration law, the Achmea judgment is irrelevant to assess the jurisdiction of this Tribunal."316 According to the Claimant, the ECJ in Achmea recognizes that the principle of effectiveness of EU law is limited to the territory of EU Member States.317

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

(a) The Respondent's Position

285.
The Respondent submits that the Achmea judgment applies to proceedings under the ECT, because EU law forms part of the applicable law under the ECT.318
286.
According to the Respondent, the term "international agreements concluded between [EU] Member States" in the operative part of the Achmea judgment "encompasses agreements reached between Member States within a multilateral framework (such as the ECT) which includes non-Member States as their Parties."319 The ECJ intended its reasoning to apply also to multilateral treaties "to the extent such agreements apply within the EU and do not affect […] third States' rights".320 This conclusion is said to be confirmed by the fact that, in Achmea, the ECJ intentionally reformulated the question put to it by the German Bundesgerichtshof from one concerning a "bilateral investment protection agreement between Member States,"321 to one concerning "international agreement[s] concluded between Member States" in general.322
287.
The Respondent rejects the Claimant's argument that the ECT differs from intra-EU BITs because the EU is a contracting party to it. Specifically, the Respondent notes that, as also confirmed in the Mox Plant decision in relation to the United Nations Convention on the Law of the Sea ("UNCLOS"), Article 344 TFEU "applies squarely" to multilateral treaties to which the EU is a party.323 For the Respondent, a treaty involving the EU as a contracting party poses a greater threat to the autonomy of EU law than treaties not involving the EU, because such treaty becomes part of EU law.324 Therefore (1) "any dispute about the interpretation and application of the ECT within EU Member States automatically constitutes a dispute about the interpretation and application of EU law"; (2) "the ECT cannot be applied as between EU Member States to the extent it is contrary to the EU Treaties"; and (3) "in accordance with Article 344 of the TFEU, EU Member States may not submit disputes concerning the ECT to non-EU dispute resolution bodies."325
288.
Additionally, the Respondent notes that Article 26 of the ECT shares the same characteristics as Article 8 of the CSFR-Netherlands BIT. On this basis, it rejects the Claimant's contention that the situation in this arbitration is different from that found in Achmea.326
289.
Further, the Respondent argues that the dictum in the Achmea judgment, which states that:

It is true that, according to settle-cased law of the Court, an international agreement providing for the establishment of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not in principle incompatible with EU law. The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected […].327

is concerned only with "the possibility for the EU to subject itself to non-EU jurisdictions".328 Hence, it does not apply to this arbitration, which concerns a dispute settlement mechanism included in an agreement concluded between EU Member States.329

290.
The Respondent concludes that this Tribunal is bound to apply Article 351(1) of the TFEU, pursuant to which Member States' obligations under EU Treaties prevail over any conflicting obligations in force between the Member States under other multilateral treaties.330 This is in line with the international law principle of pacta sunt servanda.331 In this regard, the Respondent suggests that the Tribunal follow the analysis of the tribunal in Electrabel S.A. v. The Republic of Hungary – which found that, in case of incompatibility, EU law previails over the ECT's substantive protections –, and disregard the reasoning in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain – which held that Achmea does not apply to multilateral treaties such as the ECT. For the Respondent, Masdar lacks "any analysis of relevant EU law".332
291.
It is the Respondent's position that the applicability of Article 351 of the TFEU is not affected by Article 16 of the ECT, which provides that ECT provisions "more favorable to the investor" prevail over other treaties. The accession of the Czech Republic to the EU in 2004 pre-empted incompatible previous agreements and their conflict clauses.333 Nor can Article 16 of the ECT prevail over Article 351 of the TFEU as lex specialis, because the principle of primacy plays such a central role in the legal system of the EU that it would be "manifestly absurd [and] unreasonable" to assume that EU Member States would have "deliberately signed [it] away" by joining the ECT.334

(b) The Claimant's Position

292.
The Claimant argues that the Tribunal must base its decision on international law rather than on EU law.335 Questions of jurisdiction in ECT proceedings can only be decided on the basis of the ECT's terms and they do not give priority to EU law over the ECT.336 In the absence of a choice of law clause providing for the applicability of EU law to this dispute, any jurisdictional conflict between EU law and the ECT must therefore be resolved in favor of the ECT.337
293.
Relying on Masdar and the Decision on the Achmea Issue in Vattenfall AB et al. v. Federal Republic of Germany, the Claimant observes that Article 26(6) ECT only governs "the substantive standards of protection, and not the provisions on dispute resolution, Article 26(6) applies exclusively to the merits of ECT disputes and not to jurisdiction".338
294.
Even if there was a relevant conflict between EU law and the ECT, such conflict should be resolved on the basis of Article 16 ECT, providing that "the ECT's provisions more favorable to the investor prevail over those of other (prior or subsequent) treaties", rather than on the basis of Article 351 of the TFEU.339 The Claimant contends that the prevalence of Article 16 ECT over Article 351 TFEU is confirmed by all tribunals that have dealt with the issue, save for the tribunal in Electrabel.340
295.
The Claimant further submits that a "good faith interpretation of the instruments in question cannot support the conclusion that the ECT does not give rise to inter se obligations among EU Member States, including in relation to investor-state arbitration."341
296.
According to the Claimant, the principle of harmonious interpretation is even more pertinent in relation to the ECT, because the EU is itself a contracting party to this treaty, and this leads to the presumption that "the EU intended to enter into obligations consistent with EU law."342
297.
Citing Masdar, the Claimant highlights that "the Achmea judgment does not consider, and therefore does not even purport to be relevant for, multilateral treaties like the ECT, to which the EU itself is a party."343 Further, the Claimant notes that the ECJ never mentions the ECT in Achmea.344 For the Claimant, the ECJ's "silence speaks volumes".345
298.
The Claimant rejects the Respondent's argument that the reference to "international agreements between Member States" in Achmea includes the ECT as inconsistent with ECJ jurisprudence, which distinguishes between intra-EU agreements and agreements with third states.346
299.
The Claimant also disagrees with the Respondent's argument that Article 344 of the TFEU applies to the ECT based on the Mox Plant judgment, where the ECJ found Ireland in breach of EU law for having sued the United Kingdom before an arbitral tribunal.347 Such reference to Mox Plant is inapposite, not only because the ECT does not include a disconnection clause (as, in contrast, UNCLOS does), but also because, unlike Ireland, the Claimant is not asking the Tribunal to apply or interpret EU law.348

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

(a) The Respondent's Position

300.
According to the Respondent, the ECJ's interpretation of the EU Treaties "do[es] not create, but clarify existing EU law [and] therefore take[s] effect from the date on which the relevant State has become bound by" the instruments at issue.349 Thus, as the Achmea judgment makes clear that the investment arbitration clauses in intra-EU investment treaties are incompatible with EU law and therefore inapplicable as between EU Member States, the Tribunal does not have jurisdiction to hear any claims submitted after the Czech Republic's accession to the TFEU on 1 May 2004.350 In this regard, the Respondent notes that "[t]his is a separate issue from the enforcement of the award either inside or outside the EU."351

(b) The Claimant's Position

301.
The Claimant submits that "[t]he Achmea judgment does not impact on the jurisdiction of a Swiss-seated tribunal. The potential unenforceability of this Tribunal's award within the EU is irrelevant for jurisdiction under Swiss law."352

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

(a) The Respondent's Position

302.
The Respondent submits that Article 59 of the VCLT is of no relevance to this case, because the Achmea judgment concerns specific provisions of intra-EU investment treaties and not the treaties as a whole.353
303.
In contrast, Article 30 of the VCLT, which codifies the principle of lex posterior, is "perfectly consistent" with the Achmea judgment. Unlike Article 59, Article 30 of the VCLT applies to specific treaty provisions, i.e., those enabling investment arbitration, and not the treaty as a whole.354 The Respondent also notes that the "same subject matter" requirement in Article 30 VCLT "should not […] be interpreted restrictively or applied at the level of the treaty as a whole."355 Instead, it should be deemed satisfied when "(i) a certain course of conduct attracts the application of two different treaties and; (ii) the fulfillment of an obligation under one treaty affects the fulfillment of obligations under, or undermines the object and purpose of, the other treaty",356 According to the Respondent, this is presently the case:357 as both investment treaties and the EU Treaties are concerned with intra-EU investment activities, it can reasonably be expected that issues of EU law will arise in investor-State arbitration.358 The applicability of Article 30 of the VCLT thus ensures the prevalence of the later treaty, the TFEU, over the earlier investment treaty.
304.
In any event, the residual nature of Article 30 of the VCLT paves the way to the application of more specific conflict rules, such as Article 351 of the TFEU, as relevant lex posterior.359 In particular, Article 351 of the TFEU prevails over both the lex posterior principle, codified in Article 30 of the VCLT, and the lex specialis principle invoked by the Claimant, which the Respondent both regards as "default rules [inapplicable] in case a different conflict rule is applicable between the Parties."360 In this regard, the Respondent notes that Article 351 of the TFEU is of "general scope and applies to all international agreements which may impact on the application of EU law, irrespective of subject matter".361 Moreover, the Respondent argues that Article 351 of the TFEU is a conflict of laws rule binding on all EU Member States, including the Czech Republic, and thus represents part of the law applicable to the present dispute.362
305.
The Respondent rejects the Claimant's argument that the BIT should be given precedence over EU law as lex specialis.363 In particular, the Respondent argues that investment treaties and EU law lack "otherness", which is necessary for the application of the lex specialis principle. Instead, the two regimes constitute "part and parcel of the same European legal regime that was intended to increase economic integration and prosperity in Europe."
306.
The Respondent concludes that both Article 351 of the TFEU and Article 30 of the VCLT render the investor-State arbitration provisions in this proceeding inapplicable.364

(b) The Claimant's Position

307.
The Claimant submits that "Articles 59 and 30 VCLT are not applicable for the resolution of the (apparent) conflict at issue, because the treaties invoked by the Claimant and the EU Treaties do not have the same ‘subject matter'."365 In support of its position, the Claimant cites previous awards holding that investment treaties:

(i) have a different and more specific objective than the EU Treaties, i.e. to protect foreign investors and investments, (ii) provide broader substantive protection non-equivalent to that available under the EU Treaties, for instance with reference to the FET standard, and (iii) provide a fundamental procedural protection, i.e. investor-state arbitration, with no parallel in the EU Treaties.366

308.
The Claimant puts special emphasis on the analogous conclusions reached by the tribunal in Marfin Investment Group Holdings S.A., Alexandros Bakatselos and others v. Republic of Cyprus, which rejected the relevance of the Achmea judgment to its jurisdiction "on the ground that Article 30(3) VCLT could not apply for lack of the same subject matter requirement."367
309.
The Claimant argues that the "same subject matter" consideration under Articles 59 and 30 of the VCLT "must be construed strictly, as requiring the ‘same level of generality' between treaties".368 The Claimant rejects the Respondent's position that investment treaties should be considered as part of the EU legal regime.369 Instead, it argues that investment treaties "generate a specific regime of international law" which gives investors access to a specific set of protection of the host State "foreign to the "European law regime'".370 Therefore, "[a]ny hypothetical conflict between the BITs and EU law must be resolved in favour of the BITs".371 This follows from the lex specialis rule as well as from the Tribunal's obligation to give precedence to the sub-regime to which it belongs in the event that another sub-regime, in this case EU law, claims absolute superiority.
310.
For the Claimant, the Respondent also wrongly invokes Article 351 of the TFEU.372 First, the Claimant argues that, even if Article 351 of the TFEU was a special conflict rule, it would not apply to the present dispute because EU law does not form part of the applicable law.373 Second, the Claimant contends that the Tribunal need not rely on Article 351 of the TFEU, since the provision only applies to States, i.e., not in relation to foreign investors and host States.374

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

(a) The Respondent's Position

311.
The Respondent contends that Articles 27 and 46 VCLT are of no relevance in this case, as the Respondent is not invoking its internal law to justify its position, but rather "a fundamental incompatibility between successive international treaties […] between the same contracting parties" in accordance with Article 351 of the TFEU and Article 30 of the VCLT.375
312.
In particular, the Respondent argues that the broad scope of EU law obligations, which also include "doctrines developed by the ECJ, such as primacy, direct effect, effectiveness" does not transform the law created by EU treaties into national law.376 The Respondent highlights that the Claimant itself confirmed in its submission on Achmea the international nature of EU law.377

(b) The Claimant's Position

313.
According to the Claimant, Articles 27 and 46 of the VCLT are applicable in this case:

Articles 27 and 46 of the VCLT] prohibit the Czech Republic from relying on EU law, qua domestic law, in order to escape its treaty obligations. In fact, EU law, despite its international character, is deeply integrated into the domestic law of the Czech Republic, of which it is an integral part.378

314.
On this point, the Claimant contends that EU law can be characterized as either international or national law. Its national law character stems from the fact that "EU law gives rise to a special legal order deeply integrated into the one of its Member States."379 Therefore, "for the purposes of Articles 27 and 46 VCLT, internal law includes [supranational] EC law."380
315.
The Claimant thus holds that the Respondent's position that "‘the "integration of the […] TFEU into domestic legal systems is no ‘deeper' than that of any other treaty-based international law' ignores the special features of EU law that make it a sub-regime of international law",381 in particular "its primacy over, and direct effect on, the Member States' internal laws."382

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

(a) The Respondent's Position

316.
According to the Respondent, EU law is considered by Switzerland, which is not an EU Member State, as "public international law between third countries (res inter alios acta)."383 Nevertheless, given its close relationship with the EU, "EU law also plays an extremely significant role in the Swiss legal system."384 For instance, more than one hundred international treaties that Switzerland concluded with the EU became part of Swiss domestic law once ratified.385 Additionally, on several occasions, Switzerland has unilaterally enacted domestic legislation based on EU law, a practice known as "autonomous adaptation".386 The uniform interpretation of Swiss domestic law and EU law is thus necessary to ensure a level playing field,387 and is actively pursued by Switzerland's judicial and government institutions.388 The Respondent concludes that "a consistent interpretation of the State's obligations under EU law – one of the driving principles of the Achmea judgment – is thus a recognized public interest in Switzerland."389
317.
Regarding the applicability of EU law in Swiss arbitral proceedings, the Respondent discusses a decision of the Swiss Federal Tribunal concerning the role of EU competition law in Swiss-seated arbitration on "whether a Swiss arbitral tribunal was obliged to consider the validity of the disputed contract under Article 101 of the TFEU, which prohibits anti-competitive agreements."390 The Respondent notes that the ECJ has decided in Eco Swiss v. Benetton International that EU competition law (i.e., Article 101 of the TFEU) is "a matter of EU public policy to be applied by commercial arbitral tribunals".391
318.
According to the Respondent, the Swiss Federal Tribunal decided that fundamental provisions of EU competition law constitute relevant public policy considerations.392 As a result, a Swiss-seated arbitral tribunal must take these provisions into account, notwithstanding the fact that Swiss law is the governing law of the contract.393 Otherwise, the award would be susceptible to annulment by reason of the tribunal's failure to apply the applicable law in accordance with Articles 190(2)(b) and 187(1) of the Swiss Federal Code on Private International Law ("PILA").394 In determining the content of the relevant EU law, the Respondent asserts that the Swiss Federal Tribunal follows the decision of the ECJ.395

(b) The Claimant's Position

319.
The Claimant's response to this question is as follows:

From the Swiss law perspective, EU law is res inter alios acta, and Switzerland has no interest in ensuring, through Swiss courts, its general harmonization or consistent application, any more than it has an interest in supporting the policy of other States. Instead, customary international law and general principles of law are part of Swiss law as international law within the meaning of Article 5(4) of the Swiss Constitution, and preclude giving primacy to EU law.

320.
According to the Claimant, Article 5(4) of the Swiss Constitution provides that the Swiss Confederation and the Swiss cantons have to comply with international law norms that are binding upon Switzerland. Those norms do not include EU law, as Switzerland is not an EU Member State.396 The fact that Switzerland has entered into several bilateral agreements with the EU, and that it has unilaterally enacted domestic laws based on EU law, does not "give EU law a special status in Swiss law."397 That said, the Claimant acknowledges that "interpretation [of Swiss law] in harmony with EU law has been understandably considered preferable where

possible",398 as long as it would serve Switzerland's own economic interests in terms of its nationals' competitiveness within the EU market.399 Accordingly, the Claimant submits that, in general, "Switzerland takes no stance towards the general harmonization of EU law [as it is] not a policy concern for Switzerland."400

321.
In sum, the Claimant argues that the Respondent's position that the Tribunal must apply mandatory EU law, lest its award may be set aside, is wrong for two reasons.401 First, pursuant to Article 19 of the PILA, "there is no basis for the assertion that an arbitral tribunal seated in Switzerland is obliged to apply foreign mandatory rules."402 Second, "it is undisputed that the failure of a Swiss-seated tribunal to apply such rules, or to apply them correctly, is not a ground for setting aside an award pursuant to Article 190(2)(b)".403

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

322.
Article 177(2) of the PILA provides:

If a party to the arbitration agreement is a state or an enterprise or organization controlled by it, it cannot rely on its own law in order to contest its capacity to be a party to an arbitration or the arbitrability of a dispute covered by the arbitration agreement.

(a) The Respondent's Position

323.
The Respondent points out that the goal of Article 177(2) of the PILA "is to prevent a State from abusing its own sovereign legislative or executive powers".404 The provision prohibits a State or its organ acting as a respondent before a Swiss-seated international arbitration tribunal from invoking its domestic law to contest the validity of the arbitration agreement on grounds of non-arbitrability or lack of capacity.405 Against this background, the provision thus does not apply "where the relevant legal change is outside a Party's control."406 As the Achmea judgment is not attributable to the Respondent, Article 177(2) of the PILA is not applicable.407
324.
The Respondent adds that, pursuant to Article 119 of the Swiss Code of Obligations, the arbitration clause contained in the ECT should be deemed extinguished and inoperative, as the performance of the obligation to arbitrate has become impossible due to circumstances not attributable to the party.408

(b) The Claimant's Position

325.
The Claimant submits that Article 177(2) is applicable in this case:409

The arguments that are sought to be drawn from the Achmea judgment by the Czech Republic relate to the "arbitrability" of the dispute. This matter is governed by Article 177(1) PILA [Swiss Federal Code on Private International Law], which denies any role to non-Swiss law, including EU law, for arbitrability. Arbitrability is to be assessed exclusively pursuant to Swiss law, according to which the present dispute is fully arbitrable. As regards the arbitrability of the dispute under Swiss law, it is irrelevant that the award to be rendered by this Tribunal may be unenforceable within EU Member States. It follows that, from a Swiss law perspective, the Achmea judgment is completely irrelevant.

Article 177(2) PILA prohibits a State from relying on its "own law" to contest its "capacity to be a party to an arbitration or the arbitrability of a dispute covered by the arbitration agreement". In light of Article 177(1) PILA, which already deals with arbitrability ratione materiae and applies to both private and public parties, Article 177(2) PILA is generally considered superfluous. Be as it may, in the present case it precludes the Czech Republic from relying on EU law, which is clearly its "own law".410

326.
According to the Claimant, the Respondent's arguments are meritless. First, the relevant EU law is "internal law" of the Respondent. Thus, the Respondent cannot argue that the Achmea judgment is not attributable to itself.411 As for the impossibility argument under Article 119 of the Swiss Code of Obligations, the Claimant contends that "there is no physical impossibility to perform the arbitration agreement". Also, the legal impossibility under the provision does not include the arbitrability issue, as such issue is "exclusively governed by the substantive rule of Article 177 [of the PILA]".412

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

327.
Article 186(2) of the PILA provides:

Any objection to [the Tribunal's] jurisdiction must be raised prior to any defense on the merits.

(a) The Respondent's Position

328.
The Respondent contends that Article 186(2) of the PILA "only applies to objectively arbitrable matters."413 In cases where the subject matter of the dispute is non-arbitrable, the Respondent contends, the failure to raise a jurisdictional objection in a timely manner does not lead to the foreclosure of such objection and the arbitral tribunal should examine the question of arbitrability ex officio, given that "[a] party cannot waive a right that it did not have."414 According to the Achmea judgment, which is an "expression of EU mandatory provisions", intra-EU investor-State disputes are objectively non-arbitrable; such non-arbitrability cannot be waived and must therefore be considered ex officio by this Tribunal.415
329.
In any case, the Respondent cannot be considered to have waived the intra-EU BIT jurisdictional objection because, to be effective, such waiver must be "clear and unequivocal".416 As the Respondent indicated in its Counter-Memorial that "it considered the intra-EU objection to ‘raise[] many complex and serious jurisdictional issues,' which are more appropriately resolved by the ECJ", there is no clear and unequivocal waiver.417 The Respondent adds that it raises this jurisdictional objection in a timely manner following the issuance of the Achmea judgment.418

(b) The Claimant's Position

330.
In relation to the concepts of waiver and estoppel under international law, the Claimant submits:

The principles of waiver and estoppel, which are firmly established in international law and are enshrined in Article 186(2) PILA, apply in this case. In addition to all the other reasons, the Respondent's request that these cases be dismissed on the basis of the intra-EU jurisdictional objection should be rejected because, under both international law and Swiss law, the Czech Republic (i) waived the right to raise such objection; and (ii) is estopped from raising it.419

331.
The Claimant observes that "waiver is a well-established principle of international law which has been consistently been applied by the ICJ".420 A waiver is effective if it meets these conditions:

(i) there must be a declaration or statement; (ii) made by a competent authority; (iii) of the State whose rights are affected by the waiver; (iv) made in the context of a claim/dispute; (v) not affected by individuality; and (vi) not revocable.421

332.
In this regard, the Claimant argues that the Respondent's statement that it "does not raise (or intend to raise) the intra-European Union BIT objection" meets these six requirements and thus constitutes an enforceable waiver.422
333.
In any event and separately, the Claimant contends that, pursuant to the well-established principle of estoppel,423 the Respondent would be precluded from raising the intra-EU objection.424 The relevant test is that "(i) the State must engage in a conduct or make a representation/declaration having a reasonable appearance that the State will be bound by it; and (ii) a third party relies in good faith."425 Some tribunals have considered a third element, namely "a showing of detriment for the party relying on the representation or declaration".426 The Respondent's statement that it "does not raise (or intend to raise) the intra-European Union BIT objection", the Claimant asserts, satisfies these three requirements.427
334.
As for the Respondent's argument that the Claimant's waiver and estoppel arguments do not apply here, because "the Achmea judgment is the expression of EU mandatory provisions", the Claimant submits that waiver and estoppel "are overriding principles of international law" in relation to the EU law sub-regime.428 In any case, "estoppel operates irrespective of whether the representation of [the Respondent] is legal or correct."429
335.
In respect of Article 186(2) of the PILA, the Claimant argues that it is applicable and bars the Respondent's "attempt to revive the intra EU-objections".430 In the Claimant's view, the Respondent "not only fail[ed] to contest the jurisdiction but expressly and unconditionally [undertook] not to raise a jurisdictional objection." Such behavior "falls squarely under Article 186(2)".431
336.
The Respondent's argument that Article 186(2) of the PILA does not apply to "objectively arbitrable matters" is considered flawed by the Claimant since this limit only applied to matters which are non-arbitrable under Swiss law.432 According to the Claimant, the question of arbitrability is determined by reference to the broad definition of arbitrability found in Article 177 of the PILA, which encompasses "any dispute of financial interest". The present dispute is thus arbitrable under Swiss law, so says the Claimant, and whether it is arbitrable under EU law is irrelevant.433 With reference to academic commentary, the Claimant also rejects the Respondent's argument that the Tribunal should consider arbitrability ex officio.434

10. The Tribunal's Decision

337.
Having carefully considered the arguments presented by both sides, the Tribunal finds itself in agreement with the Claimant. It holds that the Achmea judgment has no impact on this Tribunal's jurisdiction, as the Respondent is foreclosed from raising this objection at this stage of the proceedings.
338.
The seat of this arbitration is Geneva, Switzerland.435 Importantly, the Tribunal is seated outside the EU.
339.
It is well accepted that the seat of arbitration determines the procedural law governing the arbitration, and will likely impose procedural rules by which all parties must comply. Equally, the arbitration law at the seat will dictate the extent to which domestic courts will involve themselves, or may intervene, in the arbitral process, the degree to which an arbitral award may be affirmatively challenged (i.e., set aside or annulled) and the grounds for such a challenge. The Tribunal therefore cannot agree with the Respondent's submission that the seat of arbitration is irrelevant to the Tribunal's analysis.436 On the contrary, the Tribunal is called upon to satisfy itself that all Parties to this arbitration have complied with all relevant legal requirements at the seat of the arbitration throughout the arbitral process, and that there is no issue with respect of its jurisdiction as far as its seat is concerned.
340.
It is for this reason that the Tribunal deems it appropriate to consider both the conduct of the Respondent in raising its jurisdictional objection based upon the Achmea judgment, and the impact of the Achmea judgment itself on the Tribunal's jurisdiction from the perspective of Swiss law and the likely approach of the Swiss courts.
341.
Under the applicable Swiss procedural law, objections to an arbitral tribunal's jurisdiction must be brought in a timely manner. Article 186(2) of the PILA, codifying the principle of foreclosure, specifies that "[a]ny objection to [the Tribunal's] jurisdiction must be raised prior to any defense on the merits." This provision does not spell out the consequences of a failure to contest jurisdiction before dealing with the merits, but it is generally accepted that where a respondent enters an unconditional appearance and makes submissions on the merits, such behaviour constitutes an irrevocable waiver of its right to contest the arbitral tribunal's jurisdiction.437
342.
Similarly, Article 21(3) of the UNCITRAL Rules provides that "[a] plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defence or, with respect to a counter-claim, in the reply to the counter-claim."
343.
In this case, there is nothing to which the Respondent can point to satisfy the requirement in both Article 186(2) of the PILA and Article 21(3) of the UNCITRAL Rules that the jurisdictional objection in question was raised no later than the statement of defence, or any defence on the merits. Rather, as detailed below, the Respondent specifically and repeatedly stated throughout these proceedings that it would not object to the Tribunal's jurisdiction on the basis of the intra-EU nature of the dispute.
344.
In the Response to the Notice of Arbitration, the Respondent noted that "the Czech Republic does not raise (or intend to raise) the intra-European Union BIT objection".438
345.
In its Counter-Memorial, the Respondent stated that "the Czech Republic does not plead a fundamental incompatibility between investment treaties and EU law".439
346.
At the Hearing, the Respondent submitted that the "Czech Republic, as you know, does not advance an intra-EU jurisdictional objection in this case".440
347.
The Tribunal notes the Respondent's contention that any waiver of rights under Article 186(2) of the PILA, to be effective, must be expressed in "clear and unequivocal" terms.441 In this regard, the Respondent has drawn the Tribunal's attention to what it considers to be qualifying language in its submissions that would make any alleged waiver neither clear nor unequivocal. For instance, in its Counter-Memorial the Respondent noted that "'the intra-EU objection raise[d] many complex and serious jurisdictional issues', which are more appropriately resolved by the ECJ".442
348.
Having carefully reviewed each of these statements, the Tribunal disagrees with the Respondent. In the Tribunal's view, none of the Respondent's referenced qualifications changes the nature of its representations, and indeed undertakings, repeated at different stages throughout these proceedings, that no jurisdictional objection would be raised with respect to the intra-EU issue (i.e., the same issue that has now been decided in Achmea). In all the circumstances, the Tribunal therefore concludes that the Respondent waived any intra-EU BIT jurisdictional objection. Had the Respondent intended to reserve its rights, it could have done so by including express language to this effect. The Tribunal considers that the Respondent's waiver was "clear and unequivocal" and therefore valid under Article 186(2) of the PILA.
349.
There is then the question whether there is anything about the nature of the Achmea judgment and the principle for which it stands that changes this analysis as a matter of Swiss law.
350.
According to the Respondent, Article 186(2) of the PILA "only applies to objectively arbitrable matters" and the Achmea judgment as an "expression of EU mandatory provisions" renders any intra-EU dispute, including the present one, objectively non-arbitrable. In other words, the mandatory nature of the rule of EU law identified in the Achmea judgment is such that the Respondent is free to raise an objection based upon this rule in Swiss arbitral proceedings at any stage, whether before, during or after defending on the merits, and without regard to the Swiss rules on waiver.
351.
The Tribunal does not agree. As both Parties have submitted, EU law is considered by Switzerland as public international law between third countries ("res inter alios acta").443 Pursuant to Article 5(4) of the Swiss Constitution, the Swiss Confederation and the Cantons shall respect international law that is binding upon them. Similarly, Article 190 of the Swiss Constitution provides that the Swiss Supreme Court and other judicial authorities are bound to apply international law. These references to international law comprise only those norms of international law that are binding upon Switzerland. This includes, for example, customary international law, the general principles of law and the treaties signed and ratified by Switzerland. However, since Switzerland is not an EU Member State, nor a member of the European Economic Area, it cannot be said that EU law strictly forms part of international law within the meaning of the Swiss Constitution, or enjoys a special status or primacy over other rules of international law. The Tribunal is unpersuaded by the Respondent's arguments that the policy of Swiss courts to interpret Swiss statutes in harmony with EU law or the extensive network of treaties between Switzerland and the EU have a bearing on the status of EU law within the Swiss legal order. While these developments may be evidence of a growing economic integration between Switzerland and the EU, they cannot, in and of themselves, fundamentally change the legal character of EU law in Switzerland, or indeed the fact that Swiss courts are under no obligation to follow the ECJ's jurisprudence.444 The Tribunal therefore concludes that EU law does not enjoy primacy in Switzerland. Accordingly, the question of objective arbitrability must be determined from the perspective of Swiss law.
352.
The applicable Article 177(1) of the PILA provides that "[a]ny dispute of financial interest may be the subject of an arbitration". This is a self-sufficient substantive provision of Swiss international arbitration law, as opposed to a conflict of laws rule.445 As such, the Tribunal must only apply this rule, to the exclusion of any potentially stricter foreign rules (even if closely connected to the dispute). The Tribunal notes, in this regard, the Fincantieri judgment, in which the Swiss Federal Tribunal upheld a partial award on jurisdiction, finding that the commercial embargo imposed by the United Nations against Iraq did not affect the arbitrability under Swiss law of a dispute involving an agency agreement for the conclusion of contracts with the Republic of Iraq, and that the fact that an award rendered in Switzerland might not be enforceable in other jurisdictions pursuant to Article V(2) of the New York Convention was not a relevant factor for the purposes of Article 177(1) PILA.446
353.
It bears mention here that there is a consensus amongst commentators on Swiss law that foreign law has no bearing on arbitrability in Switzerland, even if it is considered part of the public policy of the foreign system at issue – unless it is also part of Swiss international public policy within the (restrictive) meaning of Article 190(2)(e) PILA.447 But the Tribunal has seen nothing to justify a conclusion that the principle identified in the Achmea judgment constitutes Swiss international public policy (as this notion has been defined). On the contrary, as the Claimant has noted, Switzerland has signed and ratified numerous BITs with different States, including EU Member States, providing for investor-State arbitration, and has manifested a clear pro-arbitration policy.
354.
In so far as the Respondent relies on the decision in Eco Swiss,448 the Tribunal considers this of no assistance. This decision concerned the law applicable to the merits of the dispute, whereas the Achmea judgment (as the Respondent itself has asserted) raises an issue of objective arbitrability, which in this case – unlike in Eco Swiss –is governed exclusively by Article 177(1) of the PILA.
355.
It follows that applying Article 177(1) of the PILA, the present dispute, which clearly involves financial interests, is objectively arbitrable under Swiss law. Whether the dispute is also arbitrable under EU law need not be decided by this Tribunal. More specifically, whether the award is enforceable outside Switzerland, or within the EU, has no impact on objective arbitrability within Switzerland.
356.
It also follows that the Achmea judgment and the principle of EU law for which it stands cannot have the effect of ignoring the procedural rules applicable to this Swiss arbitration.
357.
Further, Article 177(2) of the PILA precludes a State, which is a party to an arbitration agreement, from invoking its own law in order to contest the arbitrability of a dispute covered by such an arbitration agreement. It applies squarely to the present arbitration. To the extent that the Respondent argues that Article 177(2) of the PILA is not applicable in the present circumstances as the Achmea judgment is not attributable to the Respondent, the Tribunal disagrees. EU law, including the obligation to comply with judgments from the ECJ, forms part of the domestic legal system of the Czech Republic.449
358.
In light of these considerations, the Tribunal does not deem it necessary or appropriate to pronounce itself on the application of the Achmea judgment to an arbitration brought under the ECT.
359.
The Tribunal concludes that, in the particular circumstances of this case, the Achmea judgment cannot be relied upon by the Respondent. It has no impact on this Tribunal's jurisdiction.

VI. MERITS

A. WHETHER THE RESPONDENT VIOLATED THE FAIR AND EQUITABLE TREATMENT STANDARD

1. Whether the Respondent Failed to Provide a Stable Legal Framework

(a) The Claimant's Position

360.
The Claimant argues that the Respondent violated its obligation to accord the Claimant and its investment fair and equitable treatment ("FET") under the ECT and the BIT by changing the legal framework applicable to investments in the photovoltaic power plant market.450 In the present case, the Claimant submits that the obligation to provide FET is contained in Article 10(1) of the ECT and Article 2(1) of the BIT.451
361.
Article 10(1) of the ECT provides as follows:

Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security […].452

362.
Article 2(1) of the BIT provides as follows:

Each Contracting Party shall in its territory promote as far as possible investments by investors of the other Contracting Party and admit such investments in accordance with its legislation. Each Contracting Party shall in all cases accord investments fair and equitable treatment.453

363.
According to the Claimant, FET is a flexible standard, breaches of which may be established by reference to several types of host States' conducts, which may partially overlap.454 Such conduct includes (1) the failure to provide a stable and predictable investment framework; and (2) the failure to protect a foreign investor's legitimate expectations.455
364.
First, the Claimant submits that the Respondent failed to provide a stable and predictable investment framework by introducing the Solar Levy, removing the Income Tax Exemption, and changing the Shortened Depreciation Period.456
365.
For the Claimant, the obligation to provide a stable and predictable investment framework may be distinguished from the obligation to protect an investor's legitimate expectations.457 The former enshrines a host State's general obligation not to change its investment framework retroactively to the detriment of a foreign investor, while the latter requires an examination of an individual investors' expectations. Accordingly, the Tribunal may determine that the host State violated the obligation to provide a stable and predictable legal framework "without a specific consideration of the individual investors' expectations."458 Accordingly, the obligation to provide a stable and predictable investment framework should be examined from an objective perspective, regardless of whether a host State has provided a specific assurance or whether an investor has acknowledged such a specific assurance.459
366.
According to the Claimant, the obligation to provide a stable and predictable investment framework stems from two sources in the present case: first, from the inherent nature of the incentive legislation and, secondly, from the specific treaties that are presently applicable, i.e., the ECT and the BIT.460
367.
First, the Claimant argues that 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, the 5% rule,461 the Income Tax Exemption and the Shortened Depreciation Period.462 In the Claimant's view, it was the Incentive Regime's purpose to attract foreign investment in the RES markets by granting them sufficiently profitable returns in order to meet the 8% EU Indicative 2010 Target.463 According to the Claimant, it follows from the described nature and the purpose of the Incentive Regime that the Respondent was not allowed to change the regime before foreign investors obtained the promised benefits.464
368.
Second, the Claimant argues that the object and purpose of both the ECT and the BIT is (a) to promote investments between the Contracting States, for example, by providing a long-term incentive regime, and (b) to require host States to protect investors from legislative changes for a reasonable period of time.465
369.
In particular, the Claimant refers to Article 10(1) of the ECT which expressly requires host States to "encourage and create stable […] conditions for investors."466 The Claimant emphasises that this provision should be interpreted in accordance with the object and purpose of the ECT as set out in its introductory note, namely strengthening "the rule of law" on energy matters which, according to the Claimant, strictly prohibits retroactive regime changes.467 With respect to the BIT, the Claimant submits that the BIT's preamble and Article 2(1) stipulate the BIT's object and purpose, namely to establish investment-friendly conditions by providing reciprocal investment protections.468
370.
The Claimant rejects the Respondent's argument that a stabilization clause would be necessary to stabilize the Incentive Regime.469