Legal opinion on Uniper’s legally misconceived ISDS threat to Dutch coal phase-out

The document assesses the legal validity of Uniper's claims of 'de facto expropriation' and violations of 'fair and equitable treatment' resulting from the Dutch coal phase-out law. It concludes that the law is a legitimate exercise of state regulatory powers to meet climate goals and that Uniper had no legitimate expectation of regulatory stability for coal investments.

• The proposed Dutch law banning coal for electricity production does not constitute expropriation because it is a non-discriminatory, proportionate exercise of the state's regulatory 'police powers' aimed at protecting the public interest and meeting climate goals.
• Uniper's claim of 'substantial deprivation' of investment value is likely invalid because market forces, rather than the law, are making coal-fired plants unprofitable. The document notes that 76% of European coal-fired power stations are currently loss-making and that Uniper's Maasvlakte Power Plant 3 (MPP3) was loss-making in 2019.
• Uniper cannot claim a violation of the 'fair and equitable treatment' (FET) standard because the Dutch state made no specific promises or guarantees of regulatory stability. The document asserts that investors in harmful industries should expect progressively more stringent climate regulations.
• The document argues that Uniper and Engie failed to meet their own obligations regarding CO2 reductions by pulling out of the joint carbon capture storage (CCS) development program (the ROAD Project) in 2017.
• Arbitral tribunals may lack the competence to hear this dispute because the Achmea ruling casts doubt on the compatibility of ECT ISDS provisions in intra-EU disputes, a position supported by a January 2019 Political Declaration signed by the Netherlands and 21 other Member States.

APA

Amandine, V. D. B., & Jolie, V. M. (2019). Legal opinion on Uniper’s legally misconceived ISDS threat to Dutch coal phase-out. ClientEarth. https://www.clientearth.org/media/dkji32cj/clientearth-letter-and-analysis-regarding-the-uniper-isds-threat-ce-en.pdf

Chicago

Amandine, Van den Berghe, and Veder Maria Jolie. Legal opinion on Uniper’s legally misconceived ISDS threat to Dutch coal phase-out. ClientEarth, 2019. https://www.clientearth.org/media/dkji32cj/clientearth-letter-and-analysis-regarding-the-uniper-isds-threat-ce-en.pdf.

Wikipedia

{{cite press release |last1=Amandine |first1=Van den Berghe |last2=Jolie |first2=Veder Maria |title=Legal opinion on Uniper’s legally misconceived ISDS threat to Dutch coal phase-out |publisher=ClientEarth |date=21 November 2019 |url=https://www.clientearth.org/media/dkji32cj/clientearth-letter-and-analysis-regarding-the-uniper-isds-threat-ce-en.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@misc{amandine2019legal, author = {Amandine, Van den Berghe and Jolie, Veder Maria}, title = {{Legal opinion on Uniper’s legally misconceived ISDS threat to Dutch coal phase-out}}, publisher = {ClientEarth}, year = {2019}, month = nov, url = {https://www.clientearth.org/media/dkji32cj/clientearth-letter-and-analysis-regarding-the-uniper-isds-threat-ce-en.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }