News of the award in Green Power and Obton v Spain is sinking in. Initial responses indicate that this is no ordinary decision – but rather a ‘major earthquake’, a ‘landmark decision’ and ‘one for the history books’. It may well be: on 16 June 2022, an SCC arbitral tribunal seated in Stockholm declined jurisdiction…

Germany found itself as the hotseat of the “battle” between EU law and investment arbitration in May 2016 when the Federal Court of Justice (Bundesgerichtshof) referred questions relating to the compatibility of EU law with the arbitration clause in the Slovakia-Netherlands BIT to the Court of Justice of the European Union (“ECJ”) in Slovakia v….

Amidst the still ongoing negotiations on the modernisation of the Energy Charter Treaty (ECT), which were concluded with an agreement in principle yesterday (24 June 2022), the Court of Justice of European Union (CJEU) delivered its ruling on Belgium’s request for an opinion on the compatibility of intra-EU investor-state arbitration under a modernised text of…

A recent decision of the Lithuanian Supreme Court (Civil case No. e3K-3-121-916/2022, 18 January 2022, hereinafter the “LSC judgement”) adds another episode to the long saga of implementing the Achmea  decision. The Lithuanian decision once again confirms the end of the BITs era in Europe and turns to national courts as well as to the…

The extent to which different dispute resolution fora are willing to pay deference to the Court of Justice of the EU’s (“CJEU”) seminal (and controversial) Achmea decision is being closely observed by investors and States alike. 1) Not to mention the European Commission, which has sought to make itself heard in numerous proceedings relating to intra-EU…

In its judgment rendered today, the Court of Justice has quashed the General Court’s decision having ruled that the European Commission was not competent ratione temporis to assess whether the compensation paid by Romania to the Micula brothers, in implementation of a 2013 ICSID award rendered under the 2002 Sweden-Romania BIT, was constitutive of state…

Looking back on 2021, one realizes that for those interested in the intersection between EU law and investment arbitration, it was a busy year. As part of our customary “year-in-review” series, this post offers a brief overview of the key investment arbitration-related developments in Europe and their coverage on the Blog. I have grouped these…

In the latest episode of the intra-EU investment arbitration saga, the CJEU ruled on 26 October 2021, in Poland v. PL Holdings (Case C-109/20), that EU Member States are precluded from concluding with investors from another EU Member State an ad hoc arbitration agreement identical to an arbitration clause of an international treaty deemed invalid…

The Court of Justice of the European Union (CJEU) ruled that the Investor-State Dispute Settlement mechanism provided for by the Energy Charter Treaty (ECT) (Article 26(2)c) is not applicable to intra-EU disputes (C-741/19). In the same decision, it also decided that the acquisition of a claim arising from an electricity supply contract does not constitute…

Western European countries have taken divergent approaches to dealing with the consequences of shutting down power plants while transitioning towards cleaner energy sources. On one side, Germany resolved the resulting compensation disputes by making settlement payments to the owners of affected nuclear and coal power plants. In contrast, the Netherlands appears reluctant to similarly compensate…

According to Advocate General Maciej Szpunar, the Micula case is symbolic of the ‘conflictual relationship’ between EU law and international investment law. Indeed, the European Commission has persistently objected to the execution of the ICSID award issued in Micula, not because of the principles of autonomy and mutual trust that underpinned the Achmea judgment, but…

The Achmea saga has taken yet another twist. In a recent communication to the Dutch Parliament, the Dutch Ministry of Economic Affairs and Climate disclosed that it initiated “anti-arbitration” proceedings before the German courts on 11 May 2021 to “avert” two ECT-based ICSID arbitrations brought against it by the German energy companies RWE and Uniper (“Communication”)….

What does the future hold for investment protection in Europe? A colossal question that resonates across board rooms and government halls on both sides of the Channel. With a consortium of investment law experts including Nikos Lavranos (NL Investment Consulting), Ayse Lowe (Bench Walk), Gordon Nardell QC (Twenty Essex), and Laura Rees-Evans (Fietta LLP) joining…

Many have long feared that the end of intra-EU BIT arbitration brought about by Achmea would soon be followed by the end of contract-based intra-EU ISDS. Although Advocate General (AG) Kokott’s recent Opinion in Case C-109/20 Poland v. PL Holdings allows for a glimmer of hope for non-treaty-based investment disputes, a closer reading of the…

On December 11, 2020, the Dispute Resolution Interest Group (“DRIG”) of the American Society of International Law (“ASIL”) hosted a webinar on “The Future of Investor-State Dispute Settlement under the Energy Charter Treaty.”  The event featured Amaia Rivas Kortazar, André von Walter, Crina Baltag, and Yuriy Pochtovyk, and was moderated by DRIG co-chairs Simon Batifort…

Following a highly-publicized diplomatic battle among the EU Member States (MS), the EU revealed in mid-February its proposal to amend the ECT’s definition of the “Economic Activity in the Energy Sector” (EAES). The announcement allayed fears of the intra-EU discussions on the matter falling apart. Insofar as it sets forth a vision for amendments that…

Since Achmea there has been much debate on whether its reasoning invalidates ECT intra-EU investor state clauses as a matter of EU and international law. The recent AG’s Opinion in Cases C‑798/18 and C‑799/18 does not provide an answer to this question as a matter of EU law. A review of CJEU case law in…

The annual Fordham Conference on International Arbitration and Mediation took place virtually on 20 November 2020, the final day of the second annual New York Arbitration Week. Under the guidance of co-chairs Louis B. Kimmelman (Sidley Austin, New York) and Edna Sussman (Independent Arbitrator and Mediator and Distinguished Practitioner in Residence Fordham Law School), the…

After the Court of Justice of the European Union (“CJEU”) rendered the Achmea decision, heated discussions on its impact ensued. Particularly, the concern raised on whether the ICSID proceeding provided for in intra-EU BITs and intra-EU disputes under the Energy Charter Treaty (“ECT”) would be valid. Several arbitral tribunals and national courts have dealt with…

On 5 May 2020, which tellingly was the day before the last day in office of the President of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) Voßkuhle, the Bundesverfassungsgericht rendered its judgment on the constitutionality of the participation of the German Central Bank (Bundesbank) and the German Government in the European Central Bank (ECB)’s programme…

In its unanimous decision in the Micula case the UK Supreme Court on 19 February 2020 made clear that ICSID arbitral awards rendered by tribunals established pursuant to intra-EU BITs could be enforced in the UK. As explained by Guillaume Croisant in his blog post on 20 February, the UK Supreme Court overruled the Court…

The aftermath of Achmea Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, defending EU Member States and the European Commission have questioned the validity of the application of the investment arbitration clause in the Energy Charter Treaty (ECT) to intra-EU disputes. Although the motions to challenge jurisdiction on…

Readers of the Kluwer Arbitration Blog will be very familiar with the drama surrounding the European Union’s (EU) pushback against intra-EU investor-state dispute settlement (ISDS) as contained in intra-EU bilateral investment treaties (BITs) and in particular the “clap of thunder” Achmea (C-284/16) judgment (on this blog see, e.g. here). According to the Court of Justice…

After the quite tumultuous 2018, which saw the seminal Achmea judgment of the Court of Justice of the European Union and the subsequent awards on jurisdiction by a number of investment treaty arbitration tribunals, 2019 comes as a sequence and furtherance to developments that were in process in the course of the previous year. The…