With Germany’s nuclear power phase-out being a cornerstone of goverment policy, the challenge by Swedish energy company Vattenfall is bringing the rather arcane subject of investor-state arbitration into the headlights of the national press: Based on the Energy Charter Treaty, Vattenfall is seeking compensation of losses that result from Vattenfall having to phase out its nuclear power plants in Germany. Allegedly, damages are in the billions.
Vattenfall had been expected to take that step for quite some time, being the only non-German operator of nuclear power plants in the country. The new matter has been registered with ICSID on May 31, 2012 (ICSID Case No. ARB/12/12), and the tribunal is now to be constituted.
Vattenfall has a history of taking Germany to arbitration, having done it before over the Moorburg power plant (ICSID Case No. ARB/09/6) in 2009, a matter that was settled in March 2011 on undisclosed terms. No doubt the issue of transparency in investor-state arbitration will be discussed more intensely in the light of the new matter, giving both the size of the claims and the political implications.