In this blogpost I will explain why the European Union (“EU”) failed to meet its own constitutional requirements as set forth in Art. 21 of the Treaty on European Union (“TEU”) when it decided not to sign the modernized Energy Charter Treaty (“ECT”) text, which was recently adopted. As a starting point, I will use…
The term “EU arbitration law” may take some getting used to. After all, there is no EU arbitration act that would be comparable to, for instance, the English Arbitration Act 1996 or Chapter 12 of the Swiss Private International Law Act. Regulation (EC) No 593/2008 on the law applicable to contractual obligations (“Rome I Regulation“),…
On 25 April 2024, the European Federation for Investment Law and Arbitration (“EFILA”) held its 9th Annual Conference at Clifford Chance in Frankfurt. The conference was opened by the Chair of the Executive Board of EFILA, Mirjam van de Hel (NautaDutilh) who underscored the importance of discussing the impact of geopolitical uncertainties on international arbitration…
In a judgment dated 3 April 2024, the Swiss Supreme Court (the “SSC”) rejected Spain’s challenge of an arbitral award rendered in an intra-EU arbitration under the Energy Charter Treaty (the “ECT”). This post addresses the most salient point of this decision, i.e. the SSC’s rejection of the Achmea and Komstroy judgments of the Court…
As part of 2024 Paris Arbitration Week, Curtis, Mallet-Prevost, Colt & Mosle LLP hosted a webinar on “Swords and Shields: Navigating Current Trends in Enforcing Arbitral Awards.” The event featured Sebastiano Nessi, Loujaine Kahaleh, and Juan Perla, and was moderated by Geoffroy Lyonnet. The panel examined recent trends in the enforcement of arbitral awards, starting…
On 21 December 2023 the Court of Justice of the European Union (“CJEU”) handed down its decision in Case C-124/21 P, International Skating Union v. European Commission. The CJEU agreed with the 16 December 2020 judgment of the General Court of the EU (“GCEU”), and with the European Commission in CASE AT. 40208 International Skating…
The Court of Justice of the European Union (CJEU) ruled in Komstroy (C-741/19, Sept, 2021) that the dispute resolution mechanism of the 1994 Energy Charter Treaty (ECT) does not apply in intra-EU investment disputes. The ruling was interpreted by some as the beginning of the end of intra-EU investment arbitration. A recent decision by the…
On 10 January 2023, the Paris Court of Appeal (“Paris CoA”) set aside the 50+ million USD UNCITRAL award rendered in the dispute between Komstroy (before Energoalians LLC, and now Stileks Scientific and Production Firm LLC (“Stileks”)) and the Republic of Moldova. The referring court applied the ruling rendered by the Court of Justice of…
On 1 September 2022, the Higher Regional Court of Cologne (“HRC Cologne”) issued two much-awaited decisions granting the Netherlands’ requests (see our report here) to have the German claimants’, RWE and Uniper, ECT-based ICSID arbitrations declared inadmissible pursuant to section 1032(2) of the German Code of Civil Procedure (“ZPO”) due to their intra-EU nature. As we reported,…
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…
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”)….
The investor-State dispute settlement (ISDS) mechanism provided by Art. 26 (2) (c) of the Energy Charter Treaty (ECT) is highly relevant to the protection of intra-EU investments.1)In 2018, about 45 per cent of all treaty-based intra-EU investment arbitrations were brought pursuant to the ECT. See UNCTAD, Fact Sheet on Intra-European Union Investor-State Arbitration Cases, IIA…
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…
Intra-EU investment agreements and arbitration have been a highly divisive issue in European policy circles for decades. The European Commission has been forcefully pushing for the termination of these agreements since the early 2000s. It criticised inter alia that intra-EU investment agreements and arbitration undermine the European legal order and create inequality among European investors…
No doubt, the Energy Charter Treaty (ECT) has become the hottest topic in the investment treaty arbitration world. Not only are EU Member States the most frequent respondent in ECT disputes – for example, the Netherlands has recently received its first ECT claim – but the ECT itself is currently in the middle of a…
On 15 January 2021, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit Court”) handed down its decision in LLC SPC Stileks v. Republic of Moldova, No. 19-7106 (D.C. Cir. 2021)—a case concerning the confirmation of an arbitral award against the Republic of Moldova. The US courts confirmed the award…
While the United Kingdom (“UK”) was a member of the European Union (“EU”), the power of the English courts to grant anti-suit injunctions was considerably constrained by EU law. Now that the UK has left the EU, it is worth asking the question: are anti-suit injunctions back on the menu? This blog post provides a…
On 3 December 2020, Belgium announced the submission of a request to the Court of Justice of the European Union (“CJEU”) for an opinion on whether the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty (“ECT”) are compatible with the EU Treaties. Belgium indicated that the purpose of its request…
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…
On 11 December 2019, the Advocate General Priit Pikamäe delivered its Opinion recommending the Court of Justice of the European Union (“CJEU”) to declare that it does not have jurisdiction to rule in infringement of European Union (“EU”) law proceedings concerning the long-running border dispute between Slovenia and Croatia, which the CJEU endorsed in the…
The Paris Court of Appeal has recently sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the Energy Charter Treaty (ECT) in the ongoing Republic of Moldova v. Komstroy case. A 20-Year-Old Tale The Republic of Moldova v. Komstroy case highlights the contradicting approaches to…
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…
In a striking new episode of the long-running Micula saga, the General Court of the CJEU has quashed the European Commission’s 2015 decision that Romania’s payment of the €178 million award rendered by an ICSID tribunal back in 2013 would constitute illegal State aid in the meaning of Article 107 of the TFEU. In its…
