Energy Charter Treaty

Energy Charter Treaty, Investor-State arbitration, Investor-state tribunals, ISDS, Procedure, Provisional measures

(Università degli Studi di Trieste and Luiss Guido Carli)/ /Leave a comment

On 23 July 2024, an ICSID arbitral tribunal in the case Klesch Group v. Germany issued a decision on provisional measures directing the respondent State to refrain from collecting certain windfall profits tax in order to protect the exclusivity of the ICSID arbitral proceedings and the status quo between the parties. This post will summarize…

Climate change, ECT Withdrawal, Energy, Energy Charter Treaty, Energy Dispute, European Union

(Macchi di Cellere Gangemi)/ /1 Comment

The present post focuses on the latest European development on the modernization of the Energy Charter Treaty (“ECT”). It will do so by putting it in a broader geopolitical context and linking it to the fossil fuel-related investments carve-out, not originally envisaged in the EU proposal. It will then analyse carve-outs in investment treaties in…

Eastern Europe, ECT Modernisation, ECT Withdrawal, Energy Charter Treaty, EU Withdrawal Act, European Union, Hungary, Intra-EU Investment Arbitration

(ESSEC Business School, Paris; Paragon Advocacy) and (Permanent Representation of Hungary to the European Union)/ /Leave a comment

On 26 June 2024, 26 of the 27 EU Member States, along with the EU, signed a Declaration on the Legal Consequences of the Judgment of the Court of Justice of the EU (“CJEU”) in Komstroy and a Common Understanding on the Non-applicability of Article 26 of the Energy Charter Treaty as a Basis for…

Anti-enforcement Injunction, Energy Charter Treaty, Enforcement, Germany, Injunction, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment Arbitration, Spain

(University of Cologne (International Investment Law Centre))/ /Leave a comment

On 12 April 2024, the Regional Court of Essen (“LG Essen”) dismissed Spain’s request for an anti-enforcement injunction of an intra-EU investor-state arbitration award (2 O 447/22). The LG Essen held that anti-enforcement injunctions are inadmissible because they violate state sovereignty. This blog post will cover the facts and background of the decision, examine the…

Denial of Benefits, Energy Charter Treaty, EU Law, European Commission, European Union, Investment Arbitration

, (Pinsent Masons)/ /Leave a comment

The European Commission’s “Proposal for a Council Decision on the partial suspension of the application of the Energy Charter Treaty between the Union and any legal entity that is owned or controlled by citizens or nationals of the Russian Federation or of the Republic of Belarus, and any Investment within the meaning of the Energy…

Brexit, ECT Modernisation, ECT Withdrawal, Energy Charter Treaty, England, Investment Arbitration, UK

(Luther Rechtsanwaltsgesellschaft mbH)/ /Leave a comment

At the end of February 2024, the United Kingdom (“UK”)’s Energy Security and Net Zero Minister Graham Stuart announced his country’s decision to withdraw from the Energy Charter Treaty (“ECT”). On 28 May 2024, the Energy Charter Secretariat revealed in a press release that the UK’s formal notification of withdrawal had already been received by…

Conference, ECT Modernisation, Energy Charter Treaty, England, English Arbitration Act, English courts, English Law, EU Law, Europe, European Court of Justice, LIDW 2024, UK

(Bucerius Law School), (Avizor Advocates & Arbitrators), (BonelliErede), and (Quinn Emanuel Urquhart & Sullivan)/ /Leave a comment

The role of the United Kingdom (“UK”), particularly London, and of the European Union (“EU”) in the landscape of investment arbitration has been a central topic of discussions during the London International Dispute Week 2024 (“LIDW”). This post aims to provide a non-exhaustive account of some of the events which tackled this theme. On the…

Climate change, ECT Withdrawal, Energy Charter Treaty, European Convention on Human Rights, LIDW 2024

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On 6 June 2024, Hogan Lovells and Twenty Essex co-hosted a London International Disputes Week (“LIDW”) event on the topic “How Can Investment Protection Contribute to the Energy Transition?“. The event brought together leading experts to discuss the intersection of investment law and the global shift towards sustainable energy. The discussions were held under the…

Arbitration, Energy, Energy Charter Treaty, Energy Dispute, EU Law, European Law, Investment, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, Investor-state tribunals, Italy, Jurisdiction of the arbitral tribunal, Jurisdictional challenge, Renewable energy

(Università degli Studi di Trento)/ /Leave a comment

On March 11, 2024, an ICSID arbitral tribunal (Juan Fernández-Armesto (President), Wendy Miles, Alexis Mourre), rendered an award in Encavis AG and Others v. Italy. The controversy follows some other 14 disputes initiated by EU investors against the Italian State under the Energy Charter Treaty (“ECT”) (some of these discussed here) and falls into the…

Achmea, BIT, CJEU, Domestic Courts, ECT Withdrawal, Energy Charter Treaty, Europe, foreign direct investment, Foreign Investment, International arbitration, Intra-EU Investment Arbitration, Investment Arbitration

, (Clifford Chance)/ /Leave a comment

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…

CJEU, ECT Withdrawal, Energy Charter Treaty, EU Law, European Court of Justice

(LALIVE)/ /Leave a comment

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…

Achmea, Amicus Curiae, Energy Charter Treaty, Enforcement, Intra-EU Investment Arbitration, Intra-EU ISDS, Set aside an arbitral award, Spain

, (BakerHostetler)/ /Leave a comment

On February 2, 2024, the United States filed an amicus brief (the “Amicus”) responding to a request from the United States (“US”) Court of Appeals for the DC Circuit to provide the US’ position regarding the enforcement of three “intra-EU” investment arbitration awards issued under the Energy Charter Treaty (“ECT”) against the Kingdom of Spain….

2023 in Review, ECT Modernisation, Energy Charter Treaty, ISDS Reform, UNCITRAL WG III Series, UNCITRAL WG3 Series

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2023 marked a milestone in the reform of investor-State dispute settlement (“ISDS”). In July 2023, the United Nations Commission on International Trade Law (“UNCITRAL”) Commission notably adopted the Code of Conduct for Arbitrators in International Investment Dispute Resolution (“Code for Arbitrators”) and adopted in principle the Code of Conduct for Judges in International Investment Dispute…

Energy Charter Treaty, modernisation process, Washington Arbitration Week

(Derains&Gharavi, KU Leuven) and (Concepción Global, PLLC, Universidad Complutense de Madrid)/ /Leave a comment

The Fourth Edition of the Washington Arbitration Week (“WAW”) took place from 27 November to 1 December 2023. This post presents the panel on “ECT Modernization or Collapse?”. Jose Antonio Rivas, SJD (WAW/Xtrategy), introduced the panel with a remark that, while the Energy Charter Treaty (“ECT”) modernization process was ongoing, new ECT awards surfaced, and…

2023 in Review, ECT Withdrawal, Energy Charter Treaty, ESG, ICJ, International Investment Arbitration, International tribunals

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In 2023, investor-State dispute settlement (ISDS) reform has been influenced by growing concerns over climate change and state responsibility. This global shift is reflected in numerous requests for advisory opinions from international courts, aiming to clarify states’ obligations regarding climate change (see here, here, and here). These developments suggest a move towards a more balanced…

Australia, Energy Charter Treaty, Enforcement, ICSID Convention, Intra-EU ISDS, Investor-State arbitration, State Immunity

, (Banco Chambers)/ /Leave a comment

In June 2018, an International Centre for Settlement of Investment Disputes (ICSID) tribunal issued an award against Spain under the Energy Charter Treaty. The successful claimants then commenced proceedings in Australia seeking recognition and enforcement under the ICSID Convention. Spain responded that it had not submitted to, and therefore had immunity from, the jurisdiction of…

Achmea, Energy Charter Treaty, Enforcement, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS, UK

(Fietta LLP)/ /Leave a comment

The English High Court’s judgment in Infrastructure Services v Spain is one of the most important developments of the past year in relation to the enforcement of intra-EU investment awards. It arises out of the Luxembourgish and Dutch claimants’ successful ICSID arbitration against Spain under the Energy Charter Treaty (“ECT”), in which the tribunal held…

ECT Withdrawal, Energy Charter Treaty, EU Law, Intra-EU ISDS

, (LALIVE)/ /Leave a comment

On 7 July 2023, the European Commission issued its proposal for a Council decision on the withdrawal of the European Union from the Energy Charter Treaty (ECT). The proposal comes more than 6 months after the Commission-sponsored ECT modernization package failed to be adopted and perhaps undermines any hope that a modernized ECT will be…

ECT Modernisation, ECT Withdrawal, European Union, Treaty Amendment

(University of Vienna)/ /Leave a comment

Several EU member states have abandoned the modernization of the ECT and expressed their intention to withdraw from the ECT (see here). In February 2023, a Commission non-paper was leaked, which describes a coordinated withdrawal of the EU and its member states from the ECT as the ‘the most adequate option’. Such a coordinated withdrawal…

Anti-enforcement Injunction, Energy Charter Treaty, Enforcement, Netherlands, Spain

(Conway & Partners)/ /Leave a comment

On 28 February 2020, two Dutch investors obtained a favourable arbitral award against Spain. The tribunal found that Spain had violated the Energy Charter and ordered Spain to pay damages of EUR 15.4 million to AES Solar Energy Coöperatief U.A. (AES) and EUR 11.1 million to Ampere Equity Fund B.V. (AEF). Despite Spain’s attempts to…

Climate change, ECT Withdrawal, Energy Charter Treaty, Energy Dispute, Enforceability, Enforcement, ESG, Europe, LIDW 2023, Political Risk Insurance, Ukraine, War

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The Panel “The Future of Major Energy Projects Crises, Challenges, and Opportunities” took place on the penultimate day of the London International Disputes Week 2023 (“LIDW 2023”) on 18th May 2023 in the London office of McDermott Will & Emergy with panellist Armando Neris from McDermott Will & Emery, Lucian Ilie from Outer Temple Chambers,…

ECT Modernisation, Energy, Energy Charter Treaty, Environment, EU Law, International arbitration

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The modernization of the Energy Charter Treaty (ECT) has been debated among scholars, with some supporting it and others criticizing the process and outcome. The vote on the modernization was postponed indefinitely due to ongoing debates about the Treaty’s future, including various withdrawals from it. The modernization process encapsulates broader reform efforts and attempts to…

ECT Modernisation, ECT Withdrawal, Energy, Foreign Investment Law

(McNair International)/ /Leave a comment

Much has been written already about the future of the Energy Charter Treaty (“the ECT”) – or perhaps lack thereof. Briefly, attempts to modernise the ECT began in earnest in 2017 with the aim of better aligning the treaty’s substantive provisions with its contracting parties’ climate law obligations. On 24 June 2022, those discussions culminated…

Climate change, ECT Modernisation, ECT Withdrawal, European Union, ISDS Reform

(University of Cambridge)/ /Leave a comment

By the end of April 2023, observers of the ECT modernisation process may have felt as if they were waiting for Godot. The vote on the outcome of the ECT modernisation process, scheduled to take place at an ad hoc meeting of Energy Charter Conference at the end of April 2023, was postponed for the…