신재생에너지 관련 투자분쟁의 법적 쟁점에 관한 고찰 - OperaFund v. Spain 사건을 중심으로

Abstract

The international community is discussing the specific implementation system of the new climate system and calling for changes in energy policies to realize carbon neutrality, and the expansion of renewable energy is being rapidly pursued. However, renewable energy projects are exposed to many risks due to changes in the electricity market environment and government policies of investment host countries, and investment assets may be lost due to reduction or abolition of FIT and tax incentives of investment by the host countries. As a result, investment disputes based on investment agreements continue to arise, and in Spain, a large number of ISDSs have been filed simultaneously due to several conversions of renewable energy policies. Most of Spain-related ISDS cases were filed based on ECT, and in many cases against Spain. In most ISDSs against Spain, applicants filed INTRA-EU OBJECTIONS as a competent defense, but the arbitral tribunal recognized its jurisdiction, saying that the investment dispute was based on the ECT, a multilateral agreement, unlike the Achmea v. Slovak case. In most cases, including the OperaFund case, the arbitral tribunal denied jurisdiction over Spain’s renewable energy-related TVPEE, considering it a tax policy that excludes ISDS in the ECT. On the other hand, the arbitral tribunal acknowledged the Spanish government’s FET violation in recognition of the ‘Legitimate Expectations’ of renewable energy operators, and it admitted the Spanish government’s liability for compensation in a number of cases. Meanwhile, there are concerns about the Korean government’s refusal to approve the increase in electricity rates, raising ISDS by foreign investors of KEPCO, and on the contrary, raising ISDS is also being considered in relation to the development of fossil energy and renewable energy overseas by Korean companies. In-depth analysis is needed not only for ISDSs related to renewable energy in Spain, but also for ISDSs related to existing fossil energy generation industries such as Germany’s Vattenfall case. Through this, it is necessary to find ways to increase the Korean government’s ability to respond to ISDS and to safely protect investment in power generation projects such as renewable energy abroad.