Sophie Bayrou<\/strong><\/a>, Senior Associate at Clyde & Co<\/strong><\/a>
Samia Ajouby<\/strong>, Associate at Clyde & Co<\/strong><\/a><\/p>\n\n\n\n
\n\n\n\n
Clyde & Co<\/a>\u2019s Young Arbitration Group provides a unique insight into international arbitration issues through the lens of young international arbitration practitioners working across different jurisdictions. In this series with Daily Jus<\/a>, Clyde & Co explores the role of arbitration in mining disputes.<\/em><\/em><\/p>\n\n\n\n In these times of global ecological urgency and energy crisis, the call for a swift transition to renewable energy is growing louder on the international stage. France\u2019s commitment to green transition, combined with its well-established status as a jurisdiction for international arbitration, uniquely positions it to foster the development of renewables arbitration.<\/p>\n\n\n\n <\/span><\/p><\/h2>\n\n\n\n France is strongly placed in this field, with primary production of renewable energies up by more than 70% since 2005<\/a>. As of today, France is Europe’s second-largest producer of biomass and hydroelectricity, with a share of renewable energies equal to 22.2% of its gross final energy consumption in 2023. These developments derive from France\u2019s various commitments to combat climate change.<\/p>\n\n\n\n At a global level, France signed the United Nations Framework Convention on Climate Change (1992)<\/a> in 1992, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997)<\/a> in 1998, and the Paris Agreement (2015)<\/a> in 2016. At the European level, France is a part of the Green Pact for Europe that was established in 2019, and the climate package called \u201cFit for 55<\/em>\u201d, which reflects the EU’s target of reducing its carbon emissions by 55% by 2030. Nationally, France has adopted several laws to facilitate the green energy transition such as the Law no. 2015-992 dated 17 August 2015 on the energy transition for green growth (\u201cLoi relative \u00e0 la transition \u00e9nerg\u00e9tique pour la croissance verte<\/em>\u201d), which introduced the multi-annual energy programming; the Energy-Climate Law (\u201cLoi \u00e9nergie-climat<\/em>\u201d) on 8 November 2019, to act on the goal of carbon neutrality by 2050<\/a> in response to the goals set by the Paris Agreement; and the \u201cLaw to accelerate the production of renewable energies<\/em>\u201d, so-called \u201cAPER\u201d or \u201cENR\u201d Law (\u201cLoi n\u00b02023-175 du 10 mars 2023 relative \u00e0 l\u2019acc\u00e9l\u00e9ration de la production d\u2019\u00e9nergies renouvelables<\/em>\u201d) on 10 March 2023, which has strongly impacted the legal framework applicable to renewable energies, as it aims to set up simplified procedures to encourage the various private and public stakeholders to develop renewable energy production sources.<\/p>\n\n\n\n While these current and future legislative changes are to be welcomed, the volume of renewable energy disputes is expected to increase, due to the various contractual changes and increase of projects requiring complex contractual arrangements to comply with the new legislative requirements. While renewable energy projects in France involve issues of administrative law that may not be arbitrable (for instance, the APER Law introduced various requirements in terms of permits and authorizations delivered by French administrative authorities which fall within the exclusive jurisdiction of French administrative courts), arbitration, as an efficient and tailored dispute resolution method, can offer innovative solutions to unprecedented disputes.<\/p>\n\n\n\n Despite France’s predominant position in the field of renewable energies, it has been a party to very few investment arbitration disputes in this area. The only published dispute against France involves a request for arbitration by Encavis AG and three of its subsidiaries, concerning photovoltaic electricity issues, before ICSID. These proceedings have been discontinued by an ICSID Order, Encavis AG and others v. France<\/em>, Order of the Acting Secretary General Taking Note of the Discontinuance of the Proceeding, 24 April 2024<\/a>.<\/p>\n\n\n\n However, following the aforementioned legislative reforms, France is not immune from future legal proceedings. As such, the APER Law has introduced material changes applicable to renewable projects. For example, agrivoltaics (Article 54 Loi APER), which combines agricultural production and solar power on the same plot of land, and long-term contracts for the direct sale of electricity (Article 86) have now been expressly recognized. This law also created new obligations for economic actors, insofar as it requires public entities, and private companies with more than 250 employees, to draw up a plan for developing their land with a view to producing renewable energy.<\/p>\n\n\n\n Furthermore, as regards investment arbitration, investors now have new sources for claims, which can give rise to proceedings based on standards of protection provided for by the 112 BITS signed by France<\/a>. Some potential examples are claims based on a breach of legitimate expectations<\/a>, fair and equitable treatment<\/a>, or unlawful changes of the legal framework provided by the host state.<\/p>\n\n\n\n France\u2019s withdrawal from the Energy Charter Treaty (1994) (ECT)<\/a> in 2023 is also likely to become a source of dispute. This withdrawal was justified by the fact that the ECT could be seen as enabling investors to challenge the policies of states wishing to complete their ecological transition. This withdrawal is also explained by the judgment of the ECJ in Achmea v. Slovakia (I), Judgment of the Grand Chamber of the European Court of Justice, 6 March 2018<\/a>, in which the ECJ ruled that the dispute resolution mechanism provided for in Article 26 of the ECT<\/a> was incompatible with European Union law. This decision prompted many countries to withdraw from the ECT. However, the provisions of the ECT offer a range of guarantees and protection for foreign investors, which may be used as grounds for future investment claims. Article 47.3 of the ECT<\/a> provides for a sunset clause, that allows ECT to continue to apply to investments made prior to withdrawal for another 20 years. However, scholars have raised the possibility that a coordinated withdrawal from several States may neutralize the effects of this clause. If this position is adopted, foreign investors may raise claims on the basis of a violation of the standards of protection (See<\/em>, Withdrawing from the Energy Charter Treaty: The End is (not) Near Johannes Tropper (University of Vienna)\/November 4, 2022).<\/p>\n\n\n\n In terms of commercial arbitrations, resort to arbitration is already common in the field of renewable energies. An International Chamber of Commerce (ICC) report<\/a> published on 24 June 2024 shows that disputes arising from construction\/engineering and energy sectors in 2023, represented 45% of all new cases registered, respectively 219 (25.2%) and 179 new cases (20.6%).<\/p>\n\n\n\n Renewable energies are the hot topic of the moment. As a corollary, the increase of disputes is to be expected, and arbitration appears to be a safe route to deal with disputes in this sector.<\/p>\n\n\n\n However, arbitral tribunals may face increased pressure when balancing the interests of the contracting parties, particularly when one of the parties to the dispute is a State, who has the right to change its laws to meet its environmental commitments, while at the same time protecting the rights of foreign investors.<\/p>\n\n\n\n ABOUT THE AUTHORS<\/strong><\/p>\n\n\n\n Sophie Bayrou<\/strong><\/a> <\/strong>is a Senior Associatein the Paris office at Clyde & Co<\/strong><\/a>. She advises clients on commercial, and investment arbitration matters under a range of institutional rules, including the ICC<\/a>, LCIA<\/a> and SIAC<\/a>, and across multiple jurisdictions in Europe, the Middle East and Asia. Sophie’s experience includes advising sovereign States, and private and State-owned entities, with a focus on construction and energy-related disputes. She also regularly represents clients before French civil and commercial courts, including in annulment and enforcement proceedings of arbitral awards.\u00a0<\/p>\n\n\n\n Samia Ajouby<\/strong> is an associate in the Paris office at Clyde & Co<\/strong><\/a>, specializing in commercial and investment arbitration and international litigation. Samia has been involved in arbitration proceedings conducted under the auspices of various arbitral institutions, including the ICC<\/a> and the ICSID<\/a>. She has experience advising clients in disputes relating to the construction, high-tech and energy sectors.\u00a0<\/p>\n\n\n\n *The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.<\/em><\/em><\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" France’s commitment to green transition and arbitration expertise positions it as a hub for resolving renewable energy disputes in a growing and complex legal landscape.<\/p>\n","protected":false},"author":4,"featured_media":283436,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jnews-multi-image_gallery":[],"jnews_single_post":{"subtitle":"","format":"standard","video":"","gallery":"","source_name":"","source_url":"","via_name":"","via_url":"","override_template":"0","override":[{"template":"custom","single_blog_custom":"274736","parallax":"1","fullscreen":"1","layout":"right-sidebar","sidebar":"author","second_sidebar":"default-sidebar","sticky_sidebar":"1","share_position":"hide","share_float_style":"share-monocrhome","show_share_counter":"0","show_view_counter":"0","show_featured":"1","show_post_meta":"1","show_post_author":"0","show_post_author_image":"0","show_post_date":"1","post_date_format":"default","post_date_format_custom":"Y\/m\/d","show_post_category":"0","show_post_reading_time":"0","post_reading_time_wpm":"300","show_zoom_button":"0","zoom_button_out_step":"2","zoom_button_in_step":"3","show_post_tag":"0","show_prev_next_post":"0","show_popup_post":"0","number_popup_post":"1","show_author_box":"0","show_post_related":"0","show_inline_post_related":"0"}],"override_image_size":"0","image_override":[{"single_post_thumbnail_size":"crop-500","single_post_gallery_size":"crop-500"}],"trending_post":"0","trending_post_position":"meta","trending_post_label":"Trending","sponsored_post":"0","sponsored_post_label":"Sponsored by","sponsored_post_name":"","sponsored_post_url":"","sponsored_post_logo_enable":"0","sponsored_post_logo":"","sponsored_post_desc":"","disable_ad":"0"},"jnews_primary_category":{"id":"179","hide":""},"jnews_social_meta":{"fb_title":"Renewables Arbitration Series - A Perspective from Paris","fb_description":"France's commitment to green transition and arbitration expertise positions it as a hub for resolving renewable energy disputes in a growing and complex legal landscape.","fb_image":"283437","twitter_title":"Renewables Arbitration Series - A Perspective from Paris","twitter_description":"France's commitment to green transition and arbitration expertise positions it as a hub for resolving renewable energy disputes in a growing and complex legal landscape.","twitter_image":"283437"},"jnews_review":[],"enable_review":"0","type":"percentage","name":"","summary":"","brand":"","sku":"","good":[{"good_text":""}],"bad":[{"bad_text":""}],"score_override":"0","override_value":"","rating":[{"rating_text":"","rating_number":"10"}],"price":[{"shop":"","price":"","link":"","icon":""}],"jnews_override_counter":{"override_view_counter":"0","view_counter_number":"0","override_share_counter":"0","share_counter_number":"0","override_like_counter":"0","like_counter_number":"0","override_dislike_counter":"0","dislike_counter_number":"0"},"footnotes":""},"categories":[205,249,197,167,179,195,188,161,247],"tags":[],"coauthors":[],"class_list":["post-283427","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-arbitration","category-clyde-co","category-energy","category-europe","category-france","category-industry","category-legal-insights","category-world","category-worldwide-perspectives"],"_links":{"self":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/283427","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/comments?post=283427"}],"version-history":[{"count":2,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/283427\/revisions"}],"predecessor-version":[{"id":283438,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/283427\/revisions\/283438"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/media\/283436"}],"wp:attachment":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/media?parent=283427"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/categories?post=283427"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/tags?post=283427"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/coauthors?post=283427"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Introduction<\/strong><\/strong><\/h2>\n\n\n\n
The Renewable Energy Landscape in France<\/strong><\/span>
Why Arbitration?<\/strong><\/strong><\/h2>\n\n\n\n
Conclusion<\/strong><\/strong><\/h2>\n\n\n\n
\n\n\n\n
\n\n\n![\"\"](\"https:\/\/dailyjus.com\/wp-content\/uploads\/2024\/09\/2024-09-Clyde-and-co-1024x337.png\")
<\/figure>\n<\/div>\n\n\n