Solar Arbitrations against the Czech Republic: Glimpse of Hope for Investor-State Arbitration

September 10, 2021

The authors reflect on the Czech Republic’s experience with the investment arbitrations cases concerning investments in the renewable energy sector (“RES”). Out of the seven arbitration initiated in 2013, six were decided in favor of the Czech Republic.[1] In the remaining case, which is still pending, the arbitral tribunal has issued a partial award, in which it partly departed from the approach followed by the other six tribunals regarding the alleged breaches of international legal obligations by the Czech Republic.[2]

Before we delve more into different assessments by arbitral tribunals of the Fair and Equitable Treatment (“FET”) standard under the Energy Charter Treaty (“ECT”) and other relevant international agreements,[3] analyse the reasoning of their decisions and try to understand the basis for their disagreements, we will first present the adoption of RES support scheme in the Czech Republic and the subsequent solar boom and adaptation of the support scheme leading to investment claims. We will then look into jurisdictional objections, particularly ECT tax carve-out, and, finally, into the merits of the arbitral decisions. 

Adoption of RES Support Scheme in the Czech Republic

By the accession to the European Union on 1 May 2004, the Czech Republic undertook to harmonize its legal system with EU law, including in the area of RES, and it was obliged to transpose the relevant EU Directives[4] into its national law.

The Directive No. 2001/77/EC introduced non-binding national indicative targets for the share of renewable energy sources on the energy production to be met by the EU Member States by 2010.[5] For the Czech Republic, the national indicative target was set for at least 8% of the Czech Republic’s gross energy consumption.[6] Later, a new directive introduced mandatory national overall targets to be reached by 2020.[7] For the Czech Republic, this target was 13%.[8]

To comply with its new EU obligations, the Czech Republic adopted on 31 March 2005 the Act No. 180/2005 Coll., on Support of the Electricity Production from the Renewable Energy Sources (“RES Act”) providing a support scheme for RES producers. The incentives were designed to facilitate investments in all RES by adjusting the level of support to counter for specific costs of each RES to make all RES investments profitable in principle.[9]

During the preparation of the RES Act, it was acknowledged that the Czech Republic did not have ideal natural conditions for the use of solar RES and it was predicted that the national target could be met by a higher use of small hydro plants, wind plants and particularly by use of biomass.[10]

Under the RES Act, RES producers were granted several incentives to allow them 15 year payback on their investments (stable revenue per unit of electricity, expected 7% rate of return and lifespan of 20 years), in particular in the form of feed-in-tariffs and green bonuses, and preferential treatment by grid operators.[11] In addition to incentives under the RES Act, RES producers could also benefit from tax incentives.[12] All these incentives were introduced with a goal to make RES more prevalent in the Czech energy market, as only by 2005, the share of RES on the gross electricity production was expected to reach 5,1%.[13]

Solar Boom and Adaptation of the Support Scheme Leading to Investment Claims

Before 2009, few solar plants were installed in the Czech Republic due to many factors; relatively high price of solar panels being one of them.[14] Significant drop in prices of solar panels during 2008 and 2009 created an unexpected opportunity of higher return to solar plants leading to a significant increase of applications to connect new solar installations to the electricity grid.[15]

Moreover, since the RES Act stipulated that the feed-in-tariffs set for the RES plants commissioned in a following year by the Energy Regulatory Office (“ERO”) cannot be less than 95% of the feed-in-tariffs set for the RES plants commissioned in the immediately preceding year, the yearly setting of feed-in-tariffs could not allow for reducing the level of support to reflect potential rapid decreases in prices of certain technical components, such as solar panels. This had the effect that solar installations subsequently became much more profitable than other RES.

At the same time, the rapid growth of solar installations posed problems to the stability of the grid and led to the increase of the electricity price paid by the consumers.[16] These issues were coupled with a political crisis that prevented the Government from introducing a legislative response until 2010.[17]  

To tackle the crisis, the abovementioned 95% rule was abolished first.[18] Next, support for large installations was abolished as of March 2011. Tax incentives were also abolished.[19] Finally, in December 2010, the Czech Parliament approved the law introducing a solar levy to be applied for 3 years on the amount of electricity generated by solar producers in respect of solar plants put into operation between 1 January 2009 and 31 December 2010. The rate of the levy was 26% on feed-in-tariffs and 28% on green bonuses.[20]  

Following to the implementation of these new measures, certain investors started to voice their dissatisfaction and ultimately submitted their cases to international arbitration claiming breaches notably of the FET standard and protection against arbitrary and discriminatory measures under the ECT and relevant bilateral investment treaties.[21] 

They claimed that the implemented measure were unpredictable and contrary to the alleged guarantees enshrined in the RES Act.[22] Six of the cases were brought together; however, the Czech Republic successfully objected to a consolidation on the basis that the cases concerned different claims, which were subject to different treaties.[23] All of these cases ran their own course, although four of them ran in parallel.[24]

In parallel with the pending arbitrations, the Czech Republic was also a party to the state aid notification proceedings concerning the support scheme in question at the EU Commission.[25]

The EU Commission approved the Czech RES support scheme by its Decision of 28 November 2016.[26] The decision was then subject to the annulment proceedings at the General Court of the Court of Justice of the EU (“GCEU”) commenced by the concerned parties. The GCEU upheld the decision. [27] This decision is now pending appeal at the Court of Justice of the EU.[28] 

ECT Tax Carve-out

One of the jurisdictional objections, which related to all claims based on the ECT,[29] was the reliance of the Czech Republic on the taxation carve-out included in Article 21(1) of the ECT, which states as follows:

“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. In the event of any inconsistency between this Article and any other provision of the Treaty, this Article shall prevail to the extent of the inconsistency.”

The Czech Republic’s position was that the revocation of tax incentives and introduction of the solar levy were taxation measures that were not reviewable under the ECT in respect of the alleged breaches.[30]

All the arbitral tribunals agreed that, in respect of the revocation of the tax incentives, they did not have jurisdiction to rule on their compliance with the ECT.[31]

However, the tribunals did not come to the same conclusion with respect to the classification of the solar levy as a tax within the boundaries of Article 21 of the ECT.[32] In the Antaris case, one of the arbitrators, Judge Tomka, departed from the majority’s view that the solar levy is not a “tax” under Czech Law, but, at the same time, still considered that it should be scrutinized by them given the process of its adoption, which, according to him, was partly driven by the desire to avoid international litigation.[33]

The arbitral tribunals were also not convinced that the main purpose of the solar levy was to bring more revenue to the state budget; rather they considered it was aimed at decreasing the level of support to the concerned solar installations, which otherwise remained unaffected. Since the process of the adoption and classification of the solar levy differed in some respects from other taxes in the Czech Republic, the arbitral tribunals did not find Article 21 of the ECT applicable under the circumstances and proceeded to the review of the solar levy on the merits.[34]  

State Regulatory Powers

In all the arbitral proceedings, claimants presented many arguments to show that the modification of the Czech RES support scheme constituted a breach of the FET standard included in the ECT and relevant bilateral investment agreements.[35] In some of the cases, they also presented claims with regard to the breach of the standard of protection against arbitrary and discriminatory measures.

In the claimants’ view, the modification at stake was (i) detrimental to their operations,[36] (ii) unforeseeable at the time they made a decision to invest in the Czech Republic[37] and (iii) contrary to the legitimate expectations originating from the long-term design of the regime[38] and licenses and decisions granted for putting their plants into operation.[39]

They also contended that the Czech Republic’s original support scheme contained “intrinsic attribute of stability,”[40] because its purpose was to attract solar investments by granting them a long-term support, which in itself contained a promise of no modification to the system.[41]

The claimants further argued that a promise of stability can be made even in the absence of express stabilization clause[42] and that their reliance on the alleged promises made by the Czech Republic was reasonable.[43]

In this regard, the claimants referred to the fact that even in mid-2010, the Czech banks were still interested in financing plants to be commissioned in 2010 and the Czech Republic made repeated assurances that the modifications would not affect plants commissioned before 2011.[44]

Regarding the breaches of protection of arbitrary and discriminatory measures, the claimants asserted that the implementing measures were disproportional and placed undue burden on foreign investors.[45] They also alleged that the Czech Republic contributed to the solar boom by its own mismanagement of the situation.[46]

The Czech Republic denied all claimants’ allegations highlighting that the implemented modifications were within its regulatory state powers[47] and were not disproportionate, as the guaranteed 15 year payback and 7% rate of return of the claimants’ investments was preserved under the disputed measures.[48]

Furthermore, the Czech Republic argued that there was no express stabilization undertaking made by the Czech Republic on which the claimants’ expectations could rely.[49] The Czech Republic noted what Claimants were really alleging was a breach of a promise of profitability.[50] However, the State never made them such a promise.[51]

In addition, the Czech Republic stated that its actions were prompted by the need to safeguard the stability and security of its electricity network[52] and with a view to protect the electricity consumers compensating for the higher prices of electricity.[53] It is also undeniable that the claimants’ investments were made in a regulated energy market where regulatory adjustments are to be expected.[54]

The Czech Republic also pointed out that the claimants’ investments were subject to the EU State Aid regulations and the EU Commission has approved the Czech RES support scheme applicable to the claimants.[55] Thus, the claimants could not have reasonably and legitimately expected that the Czech Republic would not make any adjustments to the RES support scheme.[56]

This was all the more so given that the RES Act contained a provision that did not consider a rapid fall of the input values (change of solar panels prices) that would necessarily diminish the annual feed-in-tariffs and solar bonuses prices. It was also announced on multiple occasions before the claimants completed their investments that this provision was problematic and had to be amended.[57]

Ultimately, the Czech Republic argued that the claimants could not have formed any legitimate expectations under these circumstances.[58] This was particularly the case for those claimants that had received necessary contracts and approvals by December 2010, or even by the beginning of 2011.[59]

Based on the above-mentioned arguments, the arbitral tribunals in six of the cases sided with the Czech Republic and did not find any treaty breaches in relation to the challenged measures.[60] They came to the conclusion that the measures implemented by the Czech Republic were reasonable,[61] within the regulatory space of the State,[62] and did not breach the claimants’ legitimate expectations.[63] The tribunals disagreed with the claimants that the Czech Republic’s regulatory response could have been made earlier.[64]

The tribunals also found it relevant that the RES Act did not contain any stabilization guarantee (provision) in the sense that the support scheme could not ever be corrected[65] and there was no guarantee of a fixed feed-in-tariff.[66] In the Wirtgen case, the arbitral tribunal observed that the claimants’ expectations based on the language of the provisions of the RES Act should have been read in context of all parameters set by the RES Act and not by isolating one part of the provision from the other, such as claimed separate guarantee on an absolute level of revenues per unit of electricity.[67] If the provision was interpreted in this manner, other parameters of the support scheme would be disregarded (15 year payback, rate of return of 7%).[68]

On the imposition of the solar levy, the majority in Antaris noted that it “was a transparent device”, “non-retroactive”[69] and that “the market which the Claimants were entering was a bubble.... that would have been obvious to everyone who participated in industry discussions, or paid attention to warnings by specialist professionals, or read the local press.”[70]

The arbitral tribunals in the six completed cases also noted that the claimants continued to receive support in the amount guaranteeing 15 year payback on their investments and 7% rate of return, even after the implementation of the contested measures.[71]

The majority in Wirtgen took into consideration that even one of the claimants himself was satisfied with the investment, when asked at the hearing whether this was a good investment for him.[72]

The majority in Antaris noted that investor’s actions were essentially opportunistic[73] stating that the claimant “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 fast-moving and controversial political issue.”[74]

As noted by the Wirtgen tribunal, the cases also did not involve any discriminatory element as the foreign investors were treated in the same manner as all other domestic investors.[75] 

One of the arbitrators in Wirtgen and Antaris, Gary Born, did not agree with the above-mentioned conclusions concerning the FET standard and issued separate dissenting opinions. In his view, the RES Act contained stabilization guarantee on the level of revenue to be generated by a unit of electricity for the 15 (later 20) years of plants lifetime.[76] According to him, the majority ignored certain provisions of the RES Act[77] in order to reach their decision, which is irreconcilable with the language of the RES Act[78] and assurances made the Czech Republic and its regulatory bodies in the relevant period on non-diminution of the level of support received by plants commissioned in 2009 and 2010.[79] He also opined that no investor would have invested in solar RES in the Czech Republic if there had been no guarantee of a fixed feed-in-tariff for a certain period of time, let alone obtain financing for its project.[80]

The Natland tribunal, which also included Gary Born, did not share the same understanding of the modalities of the RES support scheme as the other six tribunals. It concluded that the Czech Republic fell short on its FET obligations owed to the claimants; particularly by modifying an allegedly irrevocable guarantee inscribed in the RES Act.[81] It is yet to be determined in this case whether the Czech Republic will be required to pay any damages and, if so, in what amount. 


The findings of the arbitral tribunals in the solar awards concerning the Czech Republic show that most arbitral tribunals are generally accepting the regulatory space of the state and would intervene only in cases of greatly unjustified regulation or discriminatory conduct by a state. This gives a glimpse of hope that the current investor-state system is capable of producing results that give due consideration to the legitimate regulatory challenges faced by states.

Nevertheless, a less hopeful conclusion could also be reached based on the influx of solar arbitrations faced not only by the Czech Republic, but also by Italy, Spain and other countries. In the case of the Czech Republic, while six arbitral tribunals found no breaches, one arbitral tribunal has partly departed from this approach, even though the underlying measures and the applicable law were no different in that case. This alone shows the limits of the current system in terms of consistency of the decisions. With no appeal mechanism available, there are no means available to ensure consistency.

The solar arbitrations also raised another issue. All RES investors initiating claims against the Czech Republic were from other EU countries, despite the ruling in the CJEU’s Achmea decision, which found intra-EU BIT arbitration to be contrary to EU law.[82] In addition to the BITs, most of the investors also brought claims under the ECT. The question of compatibility of Article 26 of the ECT with EU law is now before the CJEU in the Athena case[83] and in the proceeding regarding the opinion 1/20,[84] and it will be of great interest to see how the Court’s future judgment may reflect on intra-EU arbitration under that Treaty.

The authors prepared this article in their personal capacity. The views expressed are those of the authors alone and do not necessarily represent the views of the Ministry of Finance or the Government of the Czech Republic.  

Anna Bilanová
Deputy Head of Unit

Jaroslav Kudrna
Head of Unit

International Arbitration and Investment Protection Unit
Ministry of Finance of the Czech Republic

[1]     Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, Final Award of 11 October 2017, PCA Case No. 2014-03, (“Wirtgen”), Antaris Solar GmbH and Dr. Michael Göde v. Czech Republic, Award of 2 May 2018, PCA Case No. 2014-01 (“Antaris”); I.C.W. Europe Investments Limited v. Czech Republic, Award of 15 May 2019, PCA Case No. 2014-22 (“I.C.W.”); WA Investments Europa Nova Ltd. v. Czech Republic, Award of 15 May, PCA Case No. 2014-19; Voltaic Network GmbH v. Czech Republic, Award of 15 May 2019, PCA Case No. 2014-20; and Photovoltaic Knopf Betriebs GMBH v. Czech Republic, Award of 15 May 2019, PCA Case No. 2014-21. As the merits analysis by the arbitral tribunals in four last cases is similar, because they ran in parallel, this article will refer to the ICW analysis in respect of all these cases.

[2]     Natland Group Limited, Natland Investment Group NV, and Radiance Energy Holding S.A.R.L. v. Czech Republic, PCA Case No. 2013-35, Partial Award of 20 December 2017. See Charlotin D., Natland v. Czech Republic (Part 2 of 2): On the merits, tribunal finds stabilization commitment in Czech legislation and breach of that commitment with introduction of solar levy, Investment Arbitration Reporter (26 July 2018).  Given that the case is still pending at the time of writing of this article, the authors will refrain from commenting on that case.

[3]     Solar arbitrations were brought also under the following bilateral investment agreements: Czech Republic-Cyprus BIT (signed on 15 June 2001); Czech Republic-Germany BIT (signed on 2 October 1990); Czech Republic-Belgium and Luxembourg BIT (signed on 24 April 1989); Czech Republic-Netherlands BIT (signed on 29 April 1991); and Czech Republic-UK BIT (signed on 10 July 1990).

[4]     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 (“Directive 2001/77/EC”); Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (“Directive 2009/28/EC”).  

[5]     Art. 3(2) of Directive 2001/77/EC.

[6]     Annex 1 to the Directive 2001/77/EC.

[7]     Art. 3(1) and Art. 3(2) of Directive 2009/28/EC.

[8]     Annex 1 to the Directive 2009/28/EC.

[9]     Explanatory Report to Act No. 180/2005, on Support of the Electricity Production from the Renewable Energy Sources. The level of support was adjusted for each RES by way of setting out the necessary technical and economical parameters to be met RES producers in order to benefit fully from the support. These technical and economical parameters were laid down in the Energy Regulatory Office Regulations, in particular ERO Technical Regulations No. 475/2005 Coll. of 7 December 2005 and No. 364/2007 Coll. of 28 December 2007. If for some reason such as high or excessive expenses incurred on land or purchase of technical equipment a RES producer did not reach these particular technical and economical parameters, it was less efficient than predicted by the Energy Regulatory Office and would not have received a pay back on its investment in 15 years and 7% rate of return. See also infra fn 11.  

[10]   Ibid.

[11]   Articles 4-6 of the RES Act. The parameters of the support scheme (the payback of 15 years, expected lifetime of the RES plant during which the support is to be provided and rate of return of 7%) were further specified in ERO Regulations, in particular ERO Technical Regulations No. 475/2005 Coll. of 7 December 2005 and No. 364/2007 Coll. of 28 December 2007 issued to implement the RES Act.

[12]   Tax incentives were in the form of 5-year income tax exemption running from the year the plant was put into operation and preferential depreciation periods for certain intangible assets of producers of RES and were included in the Act No. 586/1992 Coll., on Income Taxes.

[13]   Explanatory Report to Act No. 180/2005, on Support of the Electricity Production from the Renewable Energy Sources.

[14] The Energy Regulatory Office Yearly Report on the Operation of the Czech Electricity Grid for 2012, Chapter 7, available at: (last accessed on 15 May 2021); Antaris, para 120.

[15]   Ibid.; Wirtgen, para 377-378; ICW, para 149, 472.

[16]   Antaris, para 125-127; Wirtgen, para 383-383; ICW, para 157.

[17]   Antaris, para 144-172; Wirtgen, para 383-406; ICW, para 156-181.

[18]   Antaris, para 144; Wirtgen, para 45, 385; ICW, para 167.

[19]   Antaris, para 156-157, 162, 172; Wirtgen, para 46-47; ICW, para 174.

[20]   Antaris, para 169-171; Wirtgen, para 48-52; ICW, para 174.

[21]   For the list of the relevant BITs see supra fn. 4.

[22]   Antaris, para 262-318; Wirtgen, para 274-303; ICW, para 419-433.

[23]   Antaris, para 14-16; ICW, para 8-10.

[24]   ICW, para 44.

[25]   State Aid Proceedings SA.40171 (2015/NN) – Czech Republic, Promotion of electricity production from renewable energy sources.

[26] Decision of the European Commission of 28 November 2016 No. C(2016) 7827 final, part 7, page 25.

[27]   Judgment of the General Court (Seventh Chamber) of 20 September 2019, FVE Holýšov I s. r. o. and Others v European Commission, T-217/17, ECLI:EU:T:2019:633, operative part of the judgment.

[28]   Appeal before the Court of Justice of the EU is registered under Case no. C-850/19 P.

[29]   Except for the Wirtgen case, all other solar cases were brought under ECT.

[30]   Antaris, para 175-194; ICW, para 257-269.

[31]   Antaris, para 217; ICW, para 290-291. At the same time, this ruling had no impact on tribunals’ competences to review the tax incentives under the relevant BITs. Ultimately, the tribunals dismissed the claims based on the breach of the relevant BITs due to the revocation of the tax incentives as discussed below in Section 5 on State Regulatory Powers.

[32]   Antaris, para 239-253; ICW, para 291-321. 

[33]   Antaris, Declaration of Judge Tomka, para 3-12; similarly, the ICW tribunal in para 321 also came to the conclusion that “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.”

[34]   Antaris, para 239-253; ICW, para 291-321.

[35]   Antaris, para 262-318; Wirtgen, para 274-303; ICW, para 419-433.

[36]   Antaris, para 262-318; Wirtgen, para 274; ICW, 592-595.

[37]   Antaris, para 281-286; Wirtgen, para 300-303; ICW, para 461.

[38]   Antaris, para 271, 274-276; Wirtgen, para 276-278; ICW, para 451-452.

[39]   Antaris, para 278; Wirtgen, para 142; ICW, para 461.

[40]   Antaris, para 264-265.

[41]   Antaris, para 263-275; ICW, para 424-430.

[42]   Antaris, para 268; 2014/19, para 270-274; ICW, para 430-432. To support their position, the claimants referred to the cases, such as Bayindir Insaat Turizm Ticaret ve Sanayi A.S. v. Islamic Republic of Pakistan (ICSID Case No. ARB/03/29, Decision on Jurisdiction, where the tribunal in para 240 found that a mere change of a host state’s investment policy can constitute a breach of the FET standard.

[43]   Antaris, 283; ICW, para 474-484.

[44]   Antaris, para 286-290; ICW, para 482, 516.

[45]   Antaris, para 312-313; ICW, para 611-613.

[46]   Antaris, para 318; ICW, para 629-630.

[47]   Antaris, para 319; Wirtgen, para 310; ICW, para 607-610.

[48]   Antaris, para 320, 326; Wirtgen, para 323-326; ICW, para 614-620.

[49]   Antaris, para 319-320; Wirtgen, para 309-312; ICW, para 434-441.

[50]   Antaris, para 327; similarly in ICW, para 499.

[51]    Ibid.

[52]   Wirtgen, para 383.

[53]   Antaris, para 355, Wirtgen, para 328; ICW, para 607-610.

[54]   Antaris, para 331-333; Wirtgen, para 343-345; ICW, para 437.

[55]   Wirtgen, para 337-342`; ICW, para 562.

[56]   Antaris, para 331 – 336; Wirtgen, para 343-350; ICW, para 570-572.

[57]   Antaris, para 331-336; Wirtgen, para 343-350; similarly ICW, para 633, 640.

[58]   Ibid.

[59]   Antaris, para 341; similar observations were made by the tribunal in ICW, para 517.

[60]   See supra fn 1.

[61]   Antaris, para 443-446; Wirtgen, para 406; ICW, para 640-642.

[62]   Antaris, para 443-446; Wirtgen, para 448-446; ICW, para 535, 642.

[63]   Antaris, para 430, 437; Wirtgen, para 426; ICW, para 557.

[64]   Wirtgen, para 444-445; similarly in Antaris, para 430; ICW, para 577-583. 

[65]   Wirtgen, para 412-413; ICW, para 528, 544-545; in Antaris, paras 365-367, the majority noted that a guarantee of promise of stability was involved on the part of the Czech Republic, which was established by documents on record and that tribunal did not accept the Czech Republic’s argument that legitimate expectations concerning stability cannot arise in case of absence of a legislative or contractual stabilization arrangement. 

[66]   Wirtgen, para 367-372; ICW, para 505.

[67]   Wirtgen, para 412-413.

[68]   Wirtgen, para 412-413.

[69]   Antaris, para 430.

[70]   Antaris, para 434.

[71]   Wirtgen, para 415-416, 469; Antaris, para 443-446; ICW, para 536, 640; ICW tribunal in para 641 made an observation in this regard that “while the return for the reference plant decreased by 3%, electricity bills decreased by 3.6% for private households and 44.3% for medium industries. As a consequence, PV producers lost rather less, comparatively, than electricity consumers won.”

[72]   Wirtgen, para 415.

[73]   Antaris, para 435.

[74]   Antaris, para 431.

[75]   Wirtgen, para 441.

[76]   G. Born’s Wirtgen dissent, para 3, 16, 18, paras 85-88; G. Born’s Antaris dissent, paras 7-10.

[77]   Notably Section 6(1)(b)1 of the RES Act.

[78]   G. Born’s Wirtgen dissent, para 38-40; similarly in G. Born’s Antaris dissent, paras 29, 42-58.

[79]   G. Born’s Wirtgen dissent, para 50-53; G. Born’s Antaris dissent, para 63-66.

[80]   G. Born’s Wirtgen dissent, para 43-46.

[81]   See supra fn 2.

[82]   CJEU, Grand Chamber, C-284/16, Slovak Republic v. Achmea BV, 6 March 2018, available at (last accessed 13 April 2018) (“Achmea”). For a detailed analysis of the impact of Achmea on investment arbitration, see Jaroslav Kudrna and Anna Bilanová, “Achmea: The End of Investment Arbitration as We Know It?”, 3(1) European Investment Law and Arbitration Review, 261 (2018).

[83]   Request for a preliminary ruling of 10 March 2021 in case C-155/21, Athena Investments and Others.

[84] Opinion C-1/20: Request for an opinion submitted by the Kingdom of Belgium pursuant to Article 218(11) TFEU, published on 15 Feb. 2021 (2021/C 53/18). In these proceedings, Belgium requested the CJEU to give an opinion on the compatibility of envisaged Article 26 of the renegotiated ECT, which in the relevant paragraphs is to remain the same, with EU law.