“雙碳”目標下的可再生能源投資仲裁研究——以“投資者合理期待”為切入視角

Study on Renewable Energy Investment Arbitration in the Context of Carbon Peaking and Carbon Neutrality Goals: From the Perspective of Legitimate Expectation of Investors

發展可再生能源已成為世界各國維護國家能源安全與應對氣候變化的重要舉措，一些企業也紛紛投資佈局。在國際投資仲裁語境下，歐盟範圍內以西班牙、意大利為代表的國家由於系列補貼制度的調整深陷泥淖。投資仲裁庭在審查公平公正待遇條款中“投資者合理期待”核心要素時的不一致，導致投資者訴求與東道國管制權難以平衡。將該問題置於“雙碳”目標與氣候變化議題視角下，重新梳理晚近可再生能源投資仲裁中仲裁庭的裁判邏輯與說理具有現實意義。我國應統籌推進可再生能源在國內治理層面與國際治理層面的良性互動。我國可再生能源領域投資者應從相關案件中吸取經驗，相機決斷；作為接受可再生能源投資東道國，我國應積極建立並完善合理的政策動態調整機制與有序的補貼退出機制。

In the background of carbon peaking and carbon neutrality goals, countries in the world have taken the development of renewable energy as vital measures to maintain national energy security and to cope with climate change. Forward-looking enterprises have also make investments in international energy industries. In the context of international investment arbitration, countries represented by Spain, Italy within the EU are mired in troubles due to the adjustment of their subsidy systems. The inconsistencies of the investment tribunal in examining the core elements of “legitimate expectation of investors” in fair and equitable treatment clause result in difficult balance between demands of investors and regulatory rights of host states. It is of practical significance to re-examine and sort out the logic and reasoning of the arbitral tribunal in recent renewable energy investment arbitration practices from the perspective of carbon peaking and carbon neutrality goals as well as climate change issue. China should coordinate and promote positive interaction of renewable energy on both domestic and international governance level. Chinese investors invest abroad should draw lessons from these arbitration cases and make decisions cautiously. As the host state of accepting renewable energy investments, China should establish and continue to rationalize its policy frameworks, adjustment mechanisms as well as the subsidy withdrawal mechanisms.