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…
In a pivotal ruling on August 16, 2024, the U.S. Court of Appeals for the D.C. Circuit (“Appellate Court”) addressed whether intra-EU arbitration awards issued under the Energy Charter Treaty (“ECT”) are enforceable in U.S. federal courts. With Spain facing over $390 million in awards, the Appellate Court confirmed that U.S. courts have jurisdiction to…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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 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…
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…
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…
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…
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…
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…
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…
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…
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,…
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…
