Before addressing these issues, it is useful to summarize the essential elements of the Tribunal's reasoning. The Tribunal centers its analysis of the Claimants' fair and equitable treatment and non-impairment claims on the following questions:
"The essential question is whether the combination of (1) the promotion of the Incentive Regime in its early days as a guarantee and (2) the deliberate non-retroactivity of the abolition of the 5% cap by Act 137/2010 for solar plants connected to the grid from 2011 and the abolition of the support by Act 330/2010 from March 11, 2011, gave rise to a legitimate expectation by solar investors in 2010 that there would be no other changes which would affect their investment. For this purpose, for the reasons given above, the imposition of the Solar Levy is to be treated as such a change."2
The Tribunal begins its analysis by relying on a selection of formulations of fair and equitable treatment and non-impairment standards from prior arbitral awards which it "summarize[s as] the present state of international law and practice" in the following "general propositions:"3
(1) "An expectation may arise from what are construed as specific guarantees in legislation.
(2) A specific representation may make a difference to the assessment of the investor's knowledge and of the reasonableness and legitimacy of its expectation, but is not indispensable to establish a claim based on legitimate expectation which is advanced under the FET standard.
(3) Provisions of general legislation applicable to a plurality of persons or a category of persons, do not create legitimate expectations that there will be no change in the law; and given the State's regulatory powers, in order to rely on legitimate expectations the investor should inquire in advance regarding the prospects of a change in the regulatory framework in light of the then prevailing or reasonably to be expected changes in the economic and social conditions of the host State.
(4) An expectation may be engendered by changes to general legislation, but, at least in the absence of a stabilization clause, they are not prevented by the fair and equitable treatment standard if they do not exceed the exercise of the host State's normal regulatory power in the pursuance of a public interest and do not modify the regulatory framework relied upon by the investor at the time of its investment outside the acceptable margin of change.
(5) The requirements of legitimate expectations and legal stability as manifestations of the FET standard do not affect the State's rights to exercise its sovereign authority to legislate and to adapt its legal system to changing circumstances.
(6) The host State is not required to elevate the interests of the investor above all other considerations, and the application of the FET standard allows for a balancing or weighing exercise by the State and the determination of a breach of the FET standard must be made in the light of the high measure of deference which international law generally extends to the right of national authorities to regulate matters within their own borders.
(7) Except where specific promises or representations are made by the State to the investor, the latter may not rely on an investment treaty as a kind of insurance policy against the risk of any changes in the host State's legal and economic framework. Such expectation would be neither legitimate nor reasonable.
(8) Protection from arbitrary or unreasonable behaviour is subsumed under the FET standard.
(10) The investor is entitled to expect that the State will not act in a way which is manifestly inconsistent or unreasonable (i.e. unrelated to some rational policy)."4
Based on those "propositions," the Tribunal considers, and rejects the claim, that the Czech Republic breached the fair and equitable treatment and non-impairment protections under the Treaties when it imposed the Solar Levy.5 Regarding the Claimants' legitimate expectations, the Tribunal states that:
"The Tribunal accepts that the Solar Levy was a transparent device to avoid what the Respondent had been advised might cause investor claims. That is clear from the minutes the Coordination Committee. But, in common with the Czech Constitutional Court, and the European Commission's Decision on state aid, the Tribunal does not consider that the modifications to the support scheme and the tax measures were retroactive, and considers that they did not violate the principle of legitimate expectation."6
Likewise, the Tribunal concludes that the Solar Levy was not an arbitrary or unreasonable change to the Czech Republic's legislative framework for renewable energy:
"The Tribunal accepts that the Solar Levy was designed (unnecessarily, in the view of the Tribunal) to disguise abolition of the 5% limit. But it was adopted as part of a package of measures which (1) introduced a State budget subsidy to limit the rise in consumer electricity prices caused, in large part, by the solar boom, and (2) sought to offset this new budget expenditure with new tax revenues. The Solar Levy was specifically targeted at those solar installations that received a FiT which was excessive. The Tribunal accepts the Respondent's case that for purposes of the reasonableness analysis, it does not matter whether a tribunal believes that a particular course of action is 'good' or 'bad,' that a different solution might have been 'better,' or that a State could have done 'more,' or that other States took different measures."7
The Tribunal accepts that the Act on Promotion guaranteed specified treatment to renewable energy producers and that the Czech Republic then actively promoted the Act's guarantee of stability to investors:
"There can be no doubt that both the Respondent and the ERO described the incentive regime in terms of a guarantee or promise of stability, and that the Czech Government actively promoted the new regime at home and abroad, and described its main element in terms of a guarantee.
The documents which establish this have already been referred to, and it is only necessary to mention that the Czech Ministry of Industry and Trade, when submitting the bill to Parliament, stated that one of the main objectives of the Act on Promotion was to establish a secure, stable and predictable regime; the 2003 Explanatory Report on the Act on Promotion stated that the support system was based 'on providing a guarantee to investors'; the former Minister of Environment stated that the most important principle of the law was the guarantee of a stable FiT for a 15 year period; the Respondent described the purpose of Section 6(1)(b)(2) as: 'providing guarantees to the investors and owners. that. revenue.will be maintained for a period of 15 years...'; and the ERO described the Act on Promotion as 'bringing a guarantee of long-term and stable promotion...' including a 'guarantee of revenues... for a period of 15 years'."8
First, Section 6(1)(b)(1) of the Act provides that the FiTs established by the ERO for particular sources in particular years would allow a return of an investor's capital investment in 15 (later 20) years. In the words of Section 6(1)(b)(1),
"The Office [or the "ERO"] 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 [...] (b) for facilities commissioned [...]  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 […]..."13
Section 6(1)(b)(1) thus provided for the ERO to establish on an annual basis specified FiTs, for every category of renewable energy sources, which would apply to all such sources commissioned in that calendar year.
Second, and separately, Section 6 of the Act also very clearly and intentionally guaranteed that the FiTs established by the ERO would be maintained as a minimum for a certain period of time. Section 6(1)(b)(2) did so when it provided that
"[the ERO] 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 […] (b) for facilities commissioned […]  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."15
The Respondent's interpretation of Section 6 also ignores the Czech Republic's own consistent descriptions of Section 6 and the Act on Promotion as providing a guarantee of minimum FiTs or Purchasing Prices for a 15-year period to investors in renewable energy sources, including the Czech Republic's statements in this arbitration.
a. In June 2005, shortly after the implementation of the Act on Promotion, Mr. Martin Bursík, Minister of Environment from 2007 to 2009, authored a newspaper article declaring that "[t]he most important principle of the law for producers is the guarantee of a stable feed-in tariff for a 15-year period following the launch of the power station into operation. In practice, this means that the valid feed-in tariff stipulated by the price assessment of the ERO in a year in which the producer supplies the first kWh into the grid remains preserved for 15 years and, moreover, will be adjusted based on the index of prices of industrial producers. This principle removes the greatest weakness of the existing promotion of renewable resources - i.e. the risk that the ERO will reduce the feed-in tariffs on a year on year basis and the producer's cash flow and ability to repay loans will be threatened."22
b. In a report submitted by the Czech Republic to the European Commission in 2005, the Czech Republic explained that the Act on Promotion "now provides previously missing guarantees for the long-term stability of the support needed for commercial decision-making,"23 i.e. "an unprecedented system of support in the form of fixed purchase (feed-in) prices and, where necessary, supplements to market prices for electricity, and also guarantees a level of return on each unit of electricity produced for a period of 15 years."24 The Czech Republic's statements were directed specifically to the guaranteed FiTs, over a 15-year period, and not on "return of investment" or payback period.
c. In a report submitted by the Czech Republic to the United Nations in 2006, the Czech Republic stated that "[t]he system of support [under Section 6 of the Act on Promotion] is based particularly on. providing guarantees to the investors and owners of installations, producing electricity from renewable sources who are subject to support pursuant to the Act, that the amount of revenue per unit of produced electricity from renewable sources acquired by the producers from the support will be maintained for a period of 15 years from bringing the installation into operation (or for a period of 15 years for installations that were brought into operation prior to the date of effect of the Act)."25 The report also said that "Act No. 180/2000 Coll. newly introduced a fifteen-year guarantee of minimum purchase prices from the date of bringing the installations into operation."26 Again, the Czech Republic's statements specifically described the Act's guaranteed "revenue" and "minimum purchase prices" for a 15-year period, not a "return of investment" or payback period.
d. The ERO made presentations to investors both inside and outside of the Czech Republic, including presentations in Prague and Augsburg. These included powerpoint presentations that stated that the Act on Promotion provided a 15-year guarantee of fixed minimum FiTs.27
i. In a 2006 presentation in Prague, the ERO stated that "[p]romotion of power generation from renewable resources pursuant to Act no. 180/2005 Coll." included "economic return -15 years" and "preservation of promotion for 15 years while, taking into account the industrial producers price index (in feed-in tariffs)."28
ii. Two years later in a presentation in Augsburg entitled "Support of Renewable Electricity in the Czech Republic," the ERO reiterated that the Act on Promotion "guaranteed" a "15 years (sic) payback period of investments."29 Similarly, the Czech Energy Agency stated in a presentation given in a 2006 workshop in Beroun that the Act on Promotion provided "Guaranteed prices for 15 years (ERO price assessment)."30
e. The Czech Republic said in a 2006 Report on the Act that: "Act No 180/2005 on the promotion of electricity produced from renewable energy sources, which guaranteed the long-term, stable support required for business decisions, entered into effect on 1 August 2005. As of 1 January 2006 this Act introduced a new support system, the key features of which are:. the guarantee of revenue per unit of electricity produced over a 15-year period as of the date a plant is put into operation [and] the preservation of the level of feed-in tariffs for 15 years for plants already in operation."31 Once more, the Czech Republic's statements focused on the guaranteed FiTs (or "revenue" and "feed-in tariffs"), over a 15-year period, and not on "return of investment" or payback period.
f. An Action Plan, submitted by the Czech Republic to the European Union in July 2010, addressed the question "how long is the fixed tariff guaranteed," by stating "[t]ariffs are guaranteed according to the following table," listing a "Feed-in price guarantee (in years)" for photovoltaic sources as "20 [years]."32 The 2010 Action Plan also stated, in answering a question whether "any tariff adjustment [is] foreseen in the scheme," that "Feed-in prices for new production installations are calculated on an annual basis, taking into account current investment costs. For existing sources, i.e. production installations already in operation, the prices are increased by 2 to 4 percent according to the development of the industrial producer price index."33 The Action Plan said specifically that there were no caps or ceilings on the volume of electricity that was eligible for the guaranteed minimum tariffs.34 As with the Czech Republic's statements quoted above, the Action Plan referred to guaranteed "tariffs" and "feed-in-prices," not "return of investment."
g. A "Questions & Answers" section on the ERO's website quotes, both in English and German, the provisions of Decree No. 150/2007, including the statements that the "Purchase Price and Green Bonus are claimed according to Regulation No. 150/2007 coll. on the lifespan of facilities generating electricity" and that the '"Purchase Prices... will increase annually considering the price index of industrial manufacturers by 2 % minimum and 4 % maximum - with the exception of those facilities incinerating biomass and biogas."35 The website also addresses the question whether "it [is] true that lifespan and pertinent payment of Purchase Prices was extended for photovoltaic power plants" stating "Purchase Price and Green Bonus for photovoltaic plants with a start-up of operations on or after 1 January 2008 can be claimed for a term of 20 years."36 Once again, the references are to guaranteed "Purchase Prices," not "return of investment."
One of the Czech Republic's principal fact witnesses in this arbitration, Mr. Josef Firt, also expressly conceded that Section 6(1)(b)(2) of the Act provided a statutory guarantee of fixed minimum FiTs for the statutorily prescribed 15-year period: "The Act on Promotion required that, provided the investment met technical and economic benchmarks, the Subsidy level would be sufficient to receive a payback of the investment costs within 15 years. To accomplish this objective, the Subsidy for each installation was to be fixed at the date of commissioning for a period of at least 15 years, subject to an annual adjustment for inflation."37
The foregoing principles are non-controversial and are acknowledged expressly by the Tribunal:
"The Tribunal does not […] accept the Respondent's suggestion that no legitimate expectations as to stability can arise in the absence of a legislative or contractual stabilization arrangement."47
"The Tribunal accepts that promises or representations to investors may be inferred from domestic legislation in the context of its background, including official statements. It is not essential that the official statements have legal force."48
Similarly, the Czech Republic itself recognized these well-settled principles in this arbitration.49 In my view, these acknowledgements are correct and reflect basic rules of international law: it is well-settled that a state may, under international law, make a binding commitment to foreign investors in its legislation.
It is well-settled that a state may make binding commitments to foreign investors through the medium of statutes or other legislative acts. That principle is affirmed by authorities too numerous to fully recite:
a. "[S]tability means that the investor's legitimate expectations based on this legal framework and on any undertakings and representations made explicitly or implicitly by the host state will be protected. The investor may rely on that legal framework as well as on representations and undertakings made by the host state including those in legislation, treaties, decrees, licenses, and contracts."52
b. "Legitimate expectations may follow from explicit or implicit representations made by the host state, or from its contractual commitments. The investor may even sometimes be entitled to presume that the overall legal framework of the investment will remain stable."53
c. "What the investor may legitimately expect must be evaluated in the light of all circumstances in each given case. The expectations may relate not only to the existing contractual or other relations between the investor and the host state, but may also concern the general legal framework in the host state."54
d. "[A]n investor may derive legitimate expectations either from (a) specific commitments addressed to it personally, for example in the form of a stabilization clause, or (b) rules that are not specifically addressed to a particular investor but which are put in place with a specific aim to induce foreign investments and on which the foreign investor relied in making his investment."55
First, I disagree with the Tribunal's suggestion that the proposition that a state is entitled to a "margin of appreciation" or some kind of margin of discretion in all circumstances reflects the "present state of international law and practice."64 The application of a margin of appreciation to a state's fair and equitable treatment obligations under investment treaties is not a generally accepted principle of international law.65 On the contrary, outside the specific ECHR context, the decisive weight of international authority correctly rejects application of a margin of appreciation as a general principle of international law:
a. The International Court of Justice refused to apply a margin of discretion in Oil Platforms.66 Instead, the Court held that "the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for a 'measure of discretion'."67
b. The International Military Tribunal for the Nuremberg trials refused to afford a margin of appreciation to decisions by German authorities in World War II, holding instead that "whether the action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced."68
c. An investment tribunal in Pezold v. Zimbabwe rejected the application of a margin of appreciation in the following terms: " [D]ue caution should be exercised in importing concepts from other legal regimes (in this case European human rights law) without a solid basis for doing so. Balancing competing (and non-absolute) human rights and the need to grant States a margin of appreciation when making those balancing decisions is well established in human rights law, but the Tribunal is not aware that the concept has found much support in international investment law.. This is a very different situation from that in which margin of appreciation is usually used. Here, the Government has agreed to specific international obligations and there is no 'margin of appreciation' qualification within the BITs at issue. Moreover, the margin of appreciation doctrine has not achieved customary status. Therefore the Tribunal declines to apply this doctrine."69
d. In Quasar de Valors, another investment tribunal rejected the application of a margin of appreciation outside the context of human rights protections: "For one thing, human rights conventions establish minimum standards to which all individuals are entitled irrespective of any act of volition on their part, whereas investment-protection treaties contain undertakings which are explicitly designed to induce foreigners to make investments in reliance upon them. It therefore makes sense that the reliability of an instrument of the latter kind should not be diluted by precisely the same notions of 'margins of appreciation, that apply to the former."70
This has been uniformly recognized in those awards addressing this issue. As the tribunal held in BG Group v. Argentina :
"withdrawal of undertakings and assurances given in good faith to investors as an inducement to their making an investments (sic) is by definition unreasonable."73
Similarly, the tribunal in EDF v. Romania, on whose findings the Tribunal relies, held that "[e]xcept where specific promises or representations are made by the State to the investor, the latter may not rely on a bilateral investment treaty as a kind of insurance policy against the risk of any changes in the host State's legal and economic framework."74
The Tribunal's Award accepts the Respondent's argument that, by mid-2010, the Claimants should have expected that further changes in the regulatory framework were likely. The Award states:
"It was clear from mid-2010 that the Government might resort to taxation measures to deal with the solar boom, and statements to that effect by the Prime Minister, Minister of Industry and Trade, and the Minister of Environment were widely reported."79
"The Tribunal accepts that the Solar Levy was a transparent device to avoid what the Respondent had been advised might cause investor claims. That is clear from the minutes the Coordination Committee. But, in common with the Czech Constitutional Court, and the European Commission's Decision on state aid, the Tribunal does not consider that the modifications to the support scheme and the tax measures were retroactive, and considers that they did not violate the principle of legitimate expectation."80
The Tribunal also concludes that:
"Dr Gode was essentially an opportunistic investor who saw a window of opportunity and who was aware, or should have been aware, that dealing with the solar boom was a fastmoving and controversial political issue."81
"He of course knew of, and endeavoured to take advantage of, the fact that the 5% limit had been removed only from 2011. But he was also aware that the Czech Government had been deeply concerned about the effect of the solar boom from 2009 and should have been aware that other legislative changes, especially with regard to tax, were in the air. The Claimants had avoided the February 2010 moratorium by taking assignments of the binding statements in relation to three of their largest projects."82
First, it is in my view highly important to consider carefully what the Czech Republic said and did during the relevant time period (from mid-2009 to late 2010). In doing so, it is essential to have regard to the fact that most of the Claimants' investments were made prior to or during the summer of 2010.84 During this time, the Czech Republic said and did the following:
a. On 24 August 2009, the Czech Ministry of Industry and Trade announced for the first time its intention to seek amendments to the Act on Promotion to reduce incentives for solar energy. The Ministry made this proposal because of concerns that an excessive number of solar plants were being planned by potential investors and that construction of these plants would result in an undue financial burden on the Czech Republic (which, as discussed above, had guaranteed the FiTs payable to these plants). Importantly, in considering a possible reduction in incentives for solar energy, the Ministry directed its attention only to the so-called 5% brake rule in Section 6(4) of the Act on Promotion, which the Ministry proposed abolishing prospectively (in January 2010), while also making it clear that the proposed changes would not affect the 15-year assurance of minimum FiTs for existing solar facilities.85 Thus, while addressing imbalances in the renewable energy sector, the Ministry's proposal was directed only to the level of guaranteed minimum FiTs for future solar installations, not for existing solar installations which had already been commissioned.
b. The day after the Ministry of Industry and Trade's 24 August announcement, the Ministry's press department clarified the scope of the proposed changes in an interview published in a Czech newspaper (Právo). The Ministry explained that "the payback period of the investment will be guaranteed, specifically by a guarantee which is already included in the law saying that the investment in the solar system has to be paid off within 15 years."86 There was again no suggestion by the Ministry that the guaranteed FiTs under Section 6(1)(b)(2) for existing solar installations would be affected.
c. A letter from the Ministry of Industry and Trade to the ERO on 28 August 2009 confirmed the Ministry's intention to preserve the treatment of existing solar installations which had already been commissioned, explaining that this was due in part to concerns about claims by existing renewable energy investors. The Ministry stated: "the goal of section 6(4)... 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 investments."87 Again, the Ministry emphasized that existing projects would not be affected by any amendments to the Act, which would entail only a prospective amendment to Section 6(4)'s 5% brake rule.
d. In September 2009, the ERO wrote an open letter to the Czech Chamber of Deputies, citing delays in the introduction of legislative changes to Section 6(4)'s 5% brake rule and again stating that any amendments to the Act's guaranteed FiTs would only affect new sources commissioned after "1 January 2011."88 The ERo explicitly stated that this delay would enable solar investors that were already in the process of completing investments "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."89
e. Adopting the ERo's recommendations, the Czech government proposed an amendment to the Act on Promotion in November 2009. The Explanatory Report to that Draft Act 137/2010 once more confirmed the Czech government's commitment to preserving the statutorily-guaranteed treatment of solar installations that had already been commissioned. The Report stated that one of the aims of "[t]he proposed wording.[was to] enable the [ERo] to adjust the prices for solar power. as of 1 January 2011."90 The Report repeated the explanation, provided in the ERo's earlier statements, that the prospective character of the amendment was intended to provide "[i]nvestors... [to] prepare sufficiently in advance for amendment of the conditions for investment, which should entirely eliminate the risk of potential lawsuits against the Czech Republic related to protection of investments."91
f. The amendment to the Act on Promotion was approved by the Chamber of Deputies on 17 March 2010 and came into force on 20 May 2010.92 The amendment provided only for the prospective elimination of Section 6(4)'s 5% brake rule for solar facilities commissioned after 1 January 2011 (not for facilities commissioned after January 2010).93 The proposed amendment did not alter the guaranteed FiTs under Section 6(1)(b)(2) for existing solar installations that had already been commissioned or that would be commissioned prior to 1 January 2011. As Mr. Vladimir Tosovsky, the Czech Minister of Industry and Trade, explained at a press conference on 16 November 2009, the decision to apply the elimination of the 5% brake rule only to solar plants commissioned after 1 January 2011 was deliberately taken to protect existing investments and investors' expectations: "It is because some projects are currently under way and the investors or banks have already invested in them. If we did this, it would mean changing the terms and conditions under which they invested in the course of the development, which could pose a threat to their investment. That is why it is 2011."94
g. In February 2010, TSo and DSos agreed on a moratorium refusing "new connection requests" for photovoltaic installations.95 The moratorium was intended to address the predicted regulatory imbalance in the solar energy sector, but it only affected new installations, not existing investments. This was confirmed by the representatives of the Czech Republic.96
h. In July 2010, the Czech Republic's 2010 Action Plan (submitted to the EU) stated that "[t]ariffs are guaranteed according to the following table," listing a "Feed-in price guarantee (in years)" for photovoltaic sources as "20 [years]."97 The same document contained various further assurances to existing solar investors.98 There was no suggestion of any sort in the 2010 Action Plan, or any associated documents that the FiTs which had been previously established and guaranteed for existing solar plants would be changed, notwithstanding the Czech government's awareness of imbalances in the renewable energy sector.
i. In September 2010, the Czech government again considered legislation that would have reduced the financial costs of subsidies for renewable energy. In connection with proposed legislation, an Explanatory Report confirmed again that changes to FiTs for solar plants would only take effect with respect to solar installations commissioned after "1 January 2011." The Report also made clear that the proposed legislation would not be applicable to "[p]hotovoltaic power plants already connected to the electric power system" and that the investors' "right to claim support [would be] preserved under existing conditions."99 Furthermore, the government explicitly stated that "[f]acilities not yet connected to the electric power system but which started operation before January 1, 2011 will have 12 months to be connected to the electric power system" and would also have "their right to claim support... preserved."100
At the Hearing, the Respondent's expert acknowledged that these statements and regulatory actions gave investors in solar projects in the Czech Republic further comfort that plants commissioned in 2010 would not be affected by the changes.101 He confirmed that in his view investors could draw comfort from the September 2010 legislative amendment that no changes would be implemented for plants commissioned in 2010:
"[Counsel for Claimants:] Now, this is September 15, 2010, so, by now, I think that they should have known very well what was going to happen in September 2010. This is a Government proposal which abolished all incentives related to large PV plants, from March 2011, and which was eventually approved by the Parliament on 3 November 2010.
Now, may I take you to the last page, when there are some interim provisions. And it says to - Section 2 -, it says: - It is a legislative change of claim for the support of production of electricity from Renewable Energy Sources, - 'photovoltaic power plants already connected to the electric power system will have the right to claim support preserved under existing conditions.'
Now, don't you think that, from an investor perspective again, this gave further comfort that no changes would have been implemented for the existing plants, for plants already connected in 2010?
[Mr. Wynne Jones]: I think that's probably a fair comment."102
The principle that an investor has no abstract duty to conduct a legal due diligence prior to making an investment was made clear by a recent investment award:
"[A]n investor cannot be required to conduct an extensive legal investigation. To determine whether the expectations invoked by the investor are reasonable, key elements are what every prudent investor needs to know about the regulatory framework before investing and the actual information held by an investor […]. In particular, a legitimate investor expectation cannot be induced by a regulatory framework when the investor's actual information allowed him to foresee and anticipate the unfavorable development of this regulatory framework before making the investment. In order to breach the legitimate expectations of the investor, the new regulatory measures should not have been foreseeable, either by a prudent investor or by an investor who, by reason of his personal situation, had specific reasons to foresee those measures."112
The Tribunal also refers in passing to a 2012 judgment of the Czech Constitutional Court116 and a 2016 Decision on State Aid of the European Commission,117 assertedly also reaching the decision that the modifications to the support scheme, including the Solar Levy, did not violate the principle of legitimate expectation:
"The Tribunal accepts that the Solar Levy was a transparent device to avoid what the Respondent had been advised might cause investor claims. That is clear from the minutes the Coordination Committee. But, in common with the Czech Constitutional Court, and the European Commission's Decision on state aid, the Tribunal does not consider that the modifications to the support scheme and the tax measures were retroactive, and considers that they did not violate the principle of legitimate expectation."118
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