A proteção internacional dos investimentos estrangeiros em energia renovável: estabilidade regulatória e poder de regular dos Estados

Abstract

Renewable energy was consolidated as a key element for the progress of the global energy transition and for the achievement of sustainable development. In addition, renewable energy is as an instrument used by many countries to fulfill international commitments under international treaties at combating the effects of climate change. The idiosyncrasies of the energy transition process are centralized in the formation of a normative structure aimed at the development of renewable energy in the law of States. In this perspective, there are multiple legislative measures focused on promoting the use of renewable sources in the production of electricity. Equally, financial support mechanisms have been proliferated based on a national regulatory framework favorable to foreign investments, demanding their compatibility with European Union law and with the rules of the World Trade Organization. The effective attraction of investments became a fundamental prerequisite for the implementation of renewable energy projects, which depend on maintaining long-term regulatory stability. Thus, the modernization of the national regulatory framework is necessary to guarantee a favorable environment for foreign investments and to effectively develop renewable energy. In contrast, a movement of substantial changes to the regulatory framework to promote the use of renewable sources, led by Spain, triggered several international arbitrations of investments in renewable energy. In this context, we shall analyze critically whether the exercise of right to regulate of States finds limits in the protection of legitimate expectations for the stability of the national regulatory framework within the standard scope of fair and equitable treatment under International Investment Law. At the end, we present propositional measures to consolidate a system of protection of foreign investments focused on the development of renewable energy and, ultimately, to establish the Spanish lessons for Brazilian law.