ITALY Law and Practice Contributed by: Maria Chiara Malaguti, Filippo Rossi and Roberto Longhi, PedersoliGattai
(FET) standard was invoked – both in terms of the obligation to ensure the stability of the measures and the protection of legitimate expectations – as well as the umbrella clause, since all the contested measures included the stipulation of agreements between the investor and the Italian entity responsible for providing the incentives (GSE). The expropriation clause was also frequently invoked. In addition to Blusun , other key cases include the fol- lowing. • Under ICSID: (a) ARB/15/37, Silver Ridge Power BV v the Italian Republic (b) ARB/15/40, Belenergia SA v the Italian Repub- lic (c) ARB/15/50 Eskosol SpA in liquidazione v the Italian Republic (d) ARB/16/5, ESPF v the Italian Republic (e) ARB/16/39, VC Holding II Sàrl and Others v the Italian Republic (f) ARB/20/3 Hamburg Commercial Bank AG (g) 1ARB/20/39 Encavis AG and Others v the Ital- ian Republic and (h) ARB/23/14, Suntech Power International Ltd v the Italian Republic . • Under the SCC: (a) Greentech Energy Systems A/S and Others v the Italian Republic , SCC Case No 2015/095; and (b) CEF Energia BV v the Italian Republic , SCC Case No 158/2015. Among these, VC Holding and Suntech are still pend- ing. In the other cases, the arbitral tribunal rejected the claimant’s claims, except for ESPF , Greentech and CEF . Blusun and ESPF were upheld by an ad hoc annulment committee. Greentech and CEF were annulled by the Stockholm Appellate Court (see 1.6 Reaction to Awards Made Against the State ). The Eskosol case deserves special mention, as it con- cerned the same circumstances as the Blusun case, since Blusun and the other two claimants were the foreign investor and Eskosol was the Italian special purpose vehicle established for the investment. Since both are theoretically considered “investors” under
the ECT and the ICSID Convention, the second tri- bunal recognised its jurisdiction and therefore ruled on the same facts as the Blusun award. Although the second tribunal adopted a different line of reasoning in assessing the case, it also concluded that the con- tested measures and conduct were lawful. In addition to this group of cases, three concerned concessions or individual contracts: • ICSID, ARB/17/14, Rockhopper v the Italian Republic • ICSID, ARB/18/20, Veolia Propreté SAS v the Italian Republic and • ICSID ARB/25/34, ArcelorMittal SA v the Italian Republic . Both Veolia and ArcelorMittal are still ongoing. As for Rockhopper, this concerned the refusal to conclude a procedure for obtaining a concession due to a change in law for environmental concerns. The investor had obtained an exploration concession and based its subsequent request for a production concession on that basis. The investor claimed violation of its legiti- mate expectations and expropriation, winning the case based on the latter claim (the court found that direct expropriation had occurred without due com- pensation). However, the award was annulled by an ad hoc panel of the ICSID for improper constitution of the tribunal. Rockhopper very recently resubmitted the dispute to a new tribunal. 1.6 Reaction to Awards Made Against the State To date, Italy has been unsuccessful in three cases. As indicated in 1.5 Major Arbitrations , two of these were submitted to the SCC’s arbitration mechanism and were successfully appealed by Italy before the Swedish Court of Appeal, as they involved intra-EU disputes. The third case ( ESPF ) also involved an intra- EU dispute, and Italy is therefore opposing its enforce- ment, which the claimant is pursuing in Switzerland and the United States.
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