With the drastic acceleration of climate change, international energy investment protection has come under intense scrutiny. Specifically, under the Energy Charter Treaty (ECT)[1] states are often held liable to pay massive damages to investors when pursuing a green energy transition.[2] The case of Rockhopper v. Italy under the ECT[3] is one example of a tribunal throwing a wrench in the works for states’ green energy transition by awarding more than € 190 million to a fossil fuel investor. The imbalance between investor protection and states’ public interests in a green energy transition has led to the European Union’s (EU’s) withdrawal from ECT[4] and introduced a new wave of modern International Investment Agreements (IIAs) such as the Comprehensive Economic Free Trade Agreement (CETA) between Canada and the EU.[5] This raises the question of what impact this new wave of IIA’s will have on international energy investments in the future. This article maps key differences between the ECT and CETA by putting the heavily critiqued case of Rockhopper v. Italy to the test under the application of CETA’s investment chapter.[6]
1. Factual Background
Rockhopper invested in offshore drilling in 2014 on the shores of Italy, awaiting an exploitation concession. However, the concession was never granted. In 2015, Italy re-adopted a ban on offshore drilling, under which the Italian Ministry for Economic Development dismissed the application, eventually leading to arbitral proceedings. Rockhopper’s claims were − inter alia − based on breaches of the expropriation and fair and equitable treatment (FET) clauses of the ECT.[7]
2. The Original Findings – Showcasing Systematic Shortcomings
The Tribunal held that Rockhopper had obtained a right to receive an exploitation concession[8] despite the company had not provided documentation for its “technical and financial capabilities.”[9] This decision was based on an Italian law from 1994, according to which Italy was bound to grant such concessions within fifteen days after approval of an Environmental Impact Assessment (EIA).[10] Accordingly, the rejection of Rockhopper’s application following the ban on offshore drilling amounted to a direct expropriation of the obtained right to receive the concession. Having found such direct expropriation, the Tribunal did not consider Rockhopper’s claim regarding a breach of the FET clause.[11]
Notably, the Tribunal emphasized that its award was based on Rockhopper’s right to obtain a concession, not on the finding that Rockhopper would have obtained the concession itself.[12] With its findings, the Tribunal thus applied an expansive analysis of property rights to the benefit of the investor. This finding contrasts with the view that, in questions of expropriation under the ECT, the aspiration of obtaining a property right must be distinguished from an already established one.[13] By finding aspirations to a concession to be an expropriable property right, the Tribunal de facto equates an aspirational right with an already established one. This significantly limits states’ right to regulate, as they most often will be held liable to pay damages and suffer from legal uncertainty regarding investors’ establishment of property rights. It is very challenging to determine a point in the administrative process after which an aspiration to receive a concession turns into a right to obtain one, even though the administrative process has not yet finished.
The tribunal’s finding is further at odds with the view that property rights are established under domestic law[14], because it does not discuss the content or even the existence of Directive 94/22/EC.[15] Under Art. 5(1) of the Directive, the documentation of “technical and financial capabilities” is a mandatory requirement for obtaining authorization to exploit hydrocarbons. With the implementation of Directive 94/22/EC in 1996, Italy fully incorporated it as domestic law.[16] Rockhopper was thus obligated to document its technical and financial capabilities to obtain an exploitation concession. Without that documentation, Italy was legally barred from granting a concession. Hence, the concession could not be granted under domestic law. This calls into question the Tribunal’s findings of expropriation. It seems far-fetched for the Tribunal to find expropriation of the aspiration to obtain a concession, which could not have been granted under domestic law at the time.
This accords with the individual opinion of arbitrator Prof. Pierre-Marie Dupuy, in which he finds it “almost impossible that Rockhopper could have established legitimate expectations of being granted an exploitation concession.” On the contrary, he found that Italy had not demonstrated that the application for an exploitation concession would entail the automatic granting of the same.[17] Nevertheless, Prof. Dupuy went on to hold direct expropriation, as Italy failed to convincingly argue that the 15-day time limit in its domestic law was inapplicable.[18] He does not, however, explain how an investor can be found to have a right to something that it cannot legitimately expect to obtain.
3. The CETA Approach
CETA’s legal framework differs substantially from that of the ECT. It provides a separate approach to analyzing expropriation and FET, addressing the allegedly too investor-friendly interpretation which many tribunals under the ECT have applied.[19] Following the path taken by the tribunal in its award, this analysis first addresses the issue of indirect expropriation before examining intricate questions regarding direct expropriation.
3.1. Less Protection against Indirect Expropriation
CETA differs from the ECT because it provides non-exhaustive elements for the assessment of indirect expropriation. These elements include the economic impact, duration of the measure, reasonable investment-backed expectations, and the character of the measure. This allows the CETA Tribunal to consider the objectives of a state in its analysis. Specifically in environmental legislation, it enlarges states’ right to regulate without incurring liability.
When addressing the character of the measure, the Tribunal shall consider the “object, context, and intent” behind a given rule. This differs from more investor-friendly formulations such as “economic impact”, “expectations”, and “character”[20], which emphasize the investment rather than the states’ interests in a given regulation. In addition, under CETA, “non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, (…) do not constitute indirect expropriations.”[21] (emphasis added) When assessing the legitimacy of political decisions, the CETA Tribunal finds guidance in the Joint Interpretative Instrument, according to which environmental protection is such a legitimate public welfare objective.[22] As such, the CETA Tribunal’s approach is likely to be less investor-friendly than that of the ECT. [23]
3.2. Lower Legitimate Expectations under FET
Art. 8.10(2) CETA provides for FET, including an exhaustive list of elements that can amount to a breach of the FET standard. Importantly, under CETA, legitimate expectations cannot in and of themselves constitute a breach of the FET standard but only supplement its main elements.[24] Due to its close link to states’ right to regulate, the CETA Tribunal will consider legitimate expectations contextually and draw on the Joint Interpretative Instrument’s emphasis on environmental protection.[25]
The provision is, in large parts, inspired by an interpretation of the FET standard in Art. 1105 of the North American Free Trade Agreement (NAFTA).[26] Therefore, there is reason to believe that the CETA Tribunal will rely on existing NAFTA case law and interpret Art. 8.10 CETA accordingly.[27] Previous NAFTA case-law has established a high threshold for legitimate expectations.
In Glamis v. U.S.[28], the tribunal held that a representation must have “purposely and specifically induced the investment.”[29]. The case regarded an investment in a mining project, which was targeted by regulation on backfilling open-pit mines, and is a rare example of a NAFTA Tribunal finding legitimate expectations to be a stand-alone element in the assessment of the FET standard.[30] Nevertheless, it applied a high threshold for legitimate expectations to arise, which is the approach adopted by Art. 8.10(4) CETA as well.
The tribunal in Cargill v. Mexico[31], a case regarding taxes imposed on products containing a certain sweetener, added the notion that a commitment must be made on a “contractual or quasi-contractual basis.”[32] Notably, it does not require bad faith to create legitimate expectations.[33]
In Mobil Investments v. Canada[34], a regulation required investors in petroleum to pay parts of their revenue to local research and development projects. The tribunal found that the investor did not have legitimate expectations of never changing legislation.[35] By the same token, Art. 8.9(2) CETA clarifies that modifications of laws do not breach the right to regulate, even if they negatively affect the investment.
The formulation of Art. 8.10 CETA thus sets the stage for legitimate expectations and its role in future CETA awards. The ever-enlarged scope of legitimate expectations under other IIA’s is sought to be limited by implementing an exhaustive list in Art. 8.10(2) CETA, degrading legitimate expectations to a supplemental role.
4. A Hypothetical Award
Based on the points highlighted above, the CETA Tribunal would likely have reached a different outcome if Rockhopper v. Italy had been decided under the framework of CETA.[36]
4.1. Direct Expropriation – A Legal Illusion?
First, in its assessment of direct expropriation, the CETA Tribunal would (and should) take into account the existence of Directive 94/22/EC, according to which the documentation of technical and financial capabilities is an unambiguous precondition to obtain an exploitation concession for hydrocarbons. Arguably, the ignorance towards the Directive is a critical legal error committed by the original Tribunal, directly impacting the expropriation analysis.
Assuming that a right of Rockhopper to obtain an exploitation concession indeed arose fifteen days after the EIA’s approval, there is a tension between EU Directive 94/22/EC and the domestic time limit: either documentation of technical and financial capabilities is a mandatory precondition to obtaining a right, or a right is established 15 days after the EIA has been approved, regardless of Directive 94/22/EC.
Article 8.31 of CETA provides that a CETA Tribunal shall not rule on the legality of domestic law itself. Rather, it must treat domestic law as a matter of fact. As the CJEU clarified in its Opinion 1/17[37] − which was released in the aftermath of Achmea[38] −, awards rendered in compliance with this principle are not in breach with the autonomy of EU law. However, Rockhopper v. Italy suggests that this safeguard may, in practice, be a legal illusion.
This is because, in practice, it can prove difficult for the CETA Tribunal to distinguish between matters of fact and matters of interpretation. Put simply: how can the CETA Tribunal apply the law of the case without interpreting it? This dilemma may lead to a contentious analysis in which the only viable course for the Tribunal is to determine the relatively clear legal contents of Directive 94/22/EC and Decree 484, and, as a matter of fact, find the two rules incompatible. The Tribunal would then be left with the primacy of EU law over domestic law, leading to the conclusion that the mandatory documentation of technical and financial capabilities takes precedence over the domestic 15-day time limit. Notably, however, the question of Decree 484’s legality must remain beyond the Tribunal’s jurisdiction.
Overall, as the preconditions of Directive 94/22/EC are not met, no right could have been established. This is because the CETA Tribunal cannot determine the legality of Decree 484. Thus, under CETA the Rockhopper scenario would not have resulted in a direct expropriation.
4.2. Indirect Expropriation
4.2.1. Accommodating Climate Action
The conclusion above that there was no direct expropriation differs from that of the Tribunal in Rockhopper. As a result, the CETA Tribunal in our hypothetical award would have to apply CETA’s provisions regarding indirect expropriation, i.e. its Art. 8.12 and Annex 8-A. By accommodating states’ environmental ambitions, the black letter text of these provisions provides for more legislative leeway than the ECT. By way of example, an analysis under Annex 8-A centres on the investor’s reasonable investment-backed expectations. These expectations are to be balanced against the character of the regulatory measure, specifically its object, context, and intent. Under this regime, the states’ interests enjoy greater protection than in previous international investment agreements. To add to that, the reaffirmation of the right to regulate in the preamble of the CETA[39] leads to the expectation that the CETA Tribunal will apply a high threshold for investors in highly regulated sectors to rely on frozen legislation.[40] This applies to the current case as well. Measures for protecting the environment are specifically listed in the preamble, and the energy sector has previously been acknowledged as a highly regulated sector.[41]
The ban on offshore drilling objectively deprived Rockhopper of the value of its investment in the oilfield. However, the investment happened in 2014 before the alleged right was established after the time limit of Decree 484 had elapsed.[42] It was always within the discretion of Italy not to grant the concession.[43] Consequently, it was not the existence of a right that induced Rockhopper to invest in the exploitation of the oilfield. Ignorance of possible legislative change in the energy sector cannot be the foundation of reasonable investment-backed expectations. As Italy made no specific representation to Rockhopper regarding the automatic grant of an exploitation concession after approval of an EIA, nor a legislative freeze in the energy sector, Rockhopper did not have legitimate investment-backed expectations of having a right to obtain a concession.
4.2.2. Proportionality – Principle and Paralysis
As the final element of an indirect expropriation, the CETA Tribunal must conduct a proportionality test due to the balance implied in Annex 8-A(2) and (3). CETA does not provide a formula for this test. Therefore, the CETA Tribunal can resort to general international law[44], where a test consisting of necessity, adequacy, and strict proportionality has prevailed specifically in European Human Rights Law.[45]
Again, however, the implications of Opinion 1/17 throw a wrench in the works of the CETA Tribunal. According to the CJEU, it is within the discretion of the European courts to determine whether a measure is proportional.[46] This finding effectively eliminates the possibility of the CETA Tribunal to assess the necessity and adequacy of the proportionality test without breaching the autonomy of EU law, leaving only a strict proportionality assessment in the CETA Tribunal’s toolbox.
Specifically, the CETA Tribunal needs to address “legitimate public welfare objectives” and whether they are “manifestly excessive.”[47] The assessment of legitimacy puts the CETA Tribunal in a precarious situation because it must assess the legitimacy of political and normative decisions.[48] To address this issue, the CETA Tribunal should show deference in its assessment of legitimacy. This accords with the provisions on the right to regulate, respecting the Parties’ legislative sovereignty.[49] In effect, the principle of the autonomy of the EU legal order thus paralyzes the CETA Tribunal in its legal analysis.
In conclusion, Italy’s offshore drilling ban should not be found manifestly excessive. The CETA Tribunal should consider it environmental protection and as depriving Rockhopper of an eventuality rather than of an established right. Therefore, no indirect expropriation can be established.
4.3. FET – Legtimate Expectations as Safety Net
If other investment protection standards fail, FET can apply as a safety net. After all, when the CETA Tribunal does not establish expropriation through a different avenue, it must assess a possible breach of the FET clause in Art. 8.10 CETA. Unlike the expropriation provisions, the FET clause retains some flexibility and provides the Tribunal with the opportunity to consider legitimate expectations. These legitimate expectations are different from “reasonable investment-backed expectations” under Annex 8-A. They are, however, merely supplemental to the elements set out in Article 8.10 and therefore cannot, by themselves, amount to a breach of fair and equitable treatment.
One of the elements that can establish a breach of FET is a fundamental breach of due process. This consideration could have played a role in Rockhopper v. Italy as well: The number of entities with pending applications for oil concessions at the time was very limited; [50] so limited, that Italy, while not specifically representing anything to Rockhopper, must have been aware of Rockhopper’s interests and the legal consequences of the changes.[51] This alone is not sufficient to give rise to legitimate expectations, but it reinforces the requirement that representations must be sufficiently specific to trigger such expectations.
Even if Italy’s conduct does not amount to expropriation, it is hard to argue that a ban, coupled with an exemption for specific applications and a subsequent revocation of that exemption, all within a little more than 5 years, is not a fundamental breach of transparency in administrative proceedings. Rockhopper was induced to invest once the exemption from the ban was adopted. By conducting non-transparent administrative proceedings that lacked legal certainty, Italy frustrated Rockhopper’s legitimate expectations at the time of investment and thereby fundamentally breached its obligation to ensure due process. Establishing a breach of FET would be less invasive than the direct expropriation determined by the original Tribunal. A CETA Tribunal should therefore recognize Italy’s conduct as a breach, albeit in a significantly less disruptive manner than in the original award.
5. Conclusion
In conclusion, the CETA investment protection chapter provides less investor protection than the ECT. Its expropriation clause is quite narrow in scope compared to the ever-growing scope of the ECT. While the FET clause does not allow legitimate expectations to constitute a breach on their own, they nevertheless play a prominent role in the assessment, essentially creating a safeguard with a higher threshold than that applied by traditional investment arbitration tribunals.
Accordingly, if Rockhopper v. Italy had been assessed under the CETA framework rather than the ECT, the outcome would have likely differed from the original award. First, the CETA Tribunal would have applied the stricter rules on expropriation to establish that neither direct nor indirect expropriation occurred. Subsequently, however, it would likely have considered the obligation to ensure due process and held that the process in place breached the less invasive FET clause. CETA thus reflects a progressive trend towards using law actively as a tool for catalyzing green energy investments.
The practical implications of the CETA Tribunal’s jurisdictional limitation – namely, its obligation to treat domestic law as a matter of fact to avoid breaching the autonomy of EU law − remain unclear. While the legal framework established by Article 8.31 CETA and the CJEU’s findings in Opinion 1/17 may be theoretically sound, they are, in practice, susceptible to legal dead ends. The restriction preventing the CETA Tribunal from interpreting domestic law effectively severs it from engaging with EU law and applying the proportionality test – both essential to a full legal analysis. In practice, this safeguard may prove to be a legal illusion. Time will tell whether the CETA Tribunal can navigate investment arbitration without compromising its credibility.
Footnotes
[1] Energy Charter Treaty, (1994), https://www.energychartertreaty.org/treaty/energy-charter-treaty/.
[2] Based on Statistics on the ECT, (Jan. 12, 2023), https://www.energychartertreaty.org/cases/statistics/.
[3] Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration Plc v. Italian Republic, ICSID Case No. ARB/17/14 (2022), https://www.italaw.com/cases/5788.
[4] Monica Dulian, EU Withdrawal from the Energy Charter Treaty, (2023), https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/754632/EPRS_BRI(2023)754632_EN.pdf (last visited Sep 26, 2024); Jorge Liboreiro, What Is the Energy Charter Treaty and Why Is It so Controversial?, euronews, Oct. 26, 2022, https://www.euronews.com/my-europe/2022/10/26/what-is-the-energy-charter-treaty-and-why-is-it-so-controversial (last visited Sep 23, 2024); Claudia Müller-Hoff & Laura Duarte, Don’t Stick to a Fossil Treaty – Pull the Plug on the Energy Charter Treaty, Völkerrechtsblog (2022), https://voelkerrechtsblog.org/dont-stick-to-a-fossil-treaty-pull-the-plug-on-the-energy-charter-treaty/ (last visited Sep 23, 2024); Johannes Tropper & Kilian Wagner, The European Union Proposal for the Modernisation of the Energy Charter Treaty – A Model for Climate-Friendly Investment Treaties? 23 The Journal of World Investment & Trade 813 (2022); Alessandra Arcuri, On How the ECT Fuels the Fossil Fuel Economy: Rockhopper v Italy as a Case Study, 7 Europe and the World: A law review (2023), https://journals.uclpress.co.uk/ewlr/article/pubid/EWLR-7-3/ (last visited Sep 23, 2024); The EU must withdraw from the Energy Charter Treaty, ClientEarth Communications (2022), https://www.clientearth.org/latest/news/the-eu-must-withdraw-from-the-energy-charter-treaty/ (last visited Oct 17, 2024).
[5] Comprehensive Economic and Trade Agreement (CETA) between Canada, of the One Part, and the European Union and Its Member States, of the Other Part (2017), https://eur-lex.europa.eu/eli/agree_internation/2017/37/oj.
[6] Id. at 8.
[7] Rockhopper v. Italy, supra note 3 at 183.
[8] Id. at 157.
[9] Id. at 158.
[10] Decree no. 484, (1994), https://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=1994-08-08&atto.codiceRedazionale=094G0354&elenco30giorni=false.
[11] Rockhopper v. Italy, supra note 3 at 197.
[12] Id. at 191.
[13] Expropriation, in Commentary on the Energy Charter Treaty , 13.16 (Second edition. ed. 2023).
[14] Id.
[15] Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the Conditions for Granting and Using Authorizations for the Prospection, Exploration and Production of Hydrocarbons, (1994), http://data.europa.eu/eli/dir/1994/22/oj/eng.
[16] Legislative Decree No. 625 implementing Directive 94/22/EC on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons., (1996), https://www.fao.org/faolex/results/details/en/c/LEX-FAOC039814/.
[17] Individual Opinion by Professor Pierre-Marie Dupuy, in Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration Plc v. Italian Republic, ICSID Case No. ARB/17/14 , 2, https://www.italaw.com/cases/5788 (last visited Sep. 23, 2024).
[18] Individual Opinion in Rockhopper v. Italy, supra note 16, at 4.
[19] Müller-Hoff and Duarte, supra note 4; Liboreiro, supra note 4; Introduction, in Commentary on the Energy Charter Treaty , I.9-12 (Second edition. ed. 2023).
[20] 2012 U.S. Model Bilateral Investment Treaty, 4(a), https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf (last visited Nov. 4, 2024).
[21] Annex 8-A, in Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part , 3 (2017), https://eur-lex.europa.eu/eli/agree_internation/2017/37/oj.
[22] Marc Bungenberg & August Reinisch, CETA Investment Law: Article-by-Article Commentary 243 (1 ed. 2022); Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and Its Member States, 1(d), 9(b) (2017), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22017X0114%2801%29.
[23] Anton Felix Habeck, Rockhopper Revisitied: Expropriation and FET under CETA (Dec. 19, 2024) (University of Copenhagen), https://jura.ku.dk/research-files/specialer/cepri/Speciale_Anton_Felix_Habeck.pdf.
[24] CETA, supra note 5 at 8.10(4).
[25] Bungenberg and Reinisch, supra note 22 at 243; Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States, supra note 22, at 1(d), 9(b).
[26] Article 8.10, Treatment of Investors and of Covered Investment, in CETA Investment Law: Article-by-Article Commentary , 14 (1 ed. 2022).
[27] Id. at 16–33.
[28] Glamis Gold, Ltd. v. U.S., https://www.italaw.com/cases/487 (last visited Nov. 12, 2024).
[29] Award, in Glamis Gold, Ltd. v. U.S. , 22, https://www.italaw.com/cases/487 (last visited Nov. 12, 2024).
[30] Fair and Equitable Treatment, 15 in Foreign investment under the comprehensive economic and trade agreement (CETA) , 107 (1st ed. 2019. ed. 2019).
[31] Cargill, Incorporated v. United Mexican States, ICSID Case No. ARB(AF)/05/2, https://www.italaw.com/cases/223 (last visited Nov. 12, 2024).
[32] Award (Redacted Version), in Cargill, Incorporated v. United Mexican States, ICSID Case No. ARB(AF)/05/2 , 290, https://www.italaw.com/cases/223 (last visited Nov. 12, 2024).
[33] Id. at 296.
[34] Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada, ICSID Case No. ARB(AF)/07/4 (2012), https://www.italaw.com/cases/1225.
[35] Decision on Liability and on Principles of Quantum, in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada, ICSID Case No. ARB(AF)/07/4 , 153 (2012), https://www.italaw.com/cases/1225; Tropper and Wagner, supra note 4 at 837.
[36] Habeck, supra note 23 at 67.
[37] European Court of Justice, Opinion of the Court of 30 April 2019 in Procedure 1/17 131 (2019), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62017CU0001.
[38] Achmea B.V. v. Slovak Republic, UNCITRAL, PCA Case No. 2008-13 (Formerly Eureko B.V. v. Slovak Republic) (2018), https://www.italaw.com/cases/417.
[39] Wording of the relevant para. in the preamble: “RECOGNISING that the provisions of this Agreement preserve the right of the Parties to regulate within their territories and the Parties’ flexibility to achieve legitimate policy objectives, such as public health, safety, environment, public morals and the promotion and protection of cultural diversity;”
[40] Eurus Energy Holdings Corporation v. Kingdom of Spain, ICSID Case No. ARB/16/4 467(b) (2022), https://www.italaw.com/cases/8648; Methanex Corporation v. U.S. IV, Ch. D, para. 9 (2005), https://www.italaw.com/cases/683.
[41] Final Award of the Tribunal on Jurisdiction and Merits, in Methanex Corporation v. U.S., IV, Ch. D, para. 9, https://www.italaw.com/cases/683 (last visited Oct 17, 2024).
[42] Rockhopper v. Italy, ICSID Case No. ARB/17/14, supra note 3 at 94.
[43] Arcuri, supra note 4 at 16.
[44] CETA, 2017, Art. 8.31(1); “Applicable Law and Interpretation,” in CETA Investment Law: Article-by-Article Commentary, by Julian Scheu, 1st ed. (Baden-Baden: Bloomsbury Publishing Plc, 2022), para. 17, https://doi.org/10.5040/9781509934683.
[45] Fair and Equitable Treatment, in International Protection of Investments: The Substantive Standards, 457, 978 (2020), https://www.cambridge.org/core/books/international-protection-of-investments/E05A3AA19C18103AA3C74EF5437086A9 (last visited Dec 3, 2024).
[46] European Court of Justice, supra note 37 at 151.
[47] Annex 8-A, supra note 21 at 3.
[48] Caroline Henckels, Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy 127 (2015), https://www.cambridge.org/core/books/proportionality-and-deference-in-investorstate-arbitration/00B18B9639212D3DC0C3BFFB67218AD0.
[49] CETA, 2017, Art. 8.9.
[50] Rockhopper v. Italy, supra note 3 at 102.
[51] Id.