Perhaps the one thing that is certain about the UK’s departure from the European Union is that it is uncertain. It is not certain that the UK and the EU will strike a deal on their future trading relationship after the UK leaves the EU on 29 March 2019; it is not known whether the…
The Court of Justice of the European Union’s (CJEU) judgment in Slovak Republic v. Achmea B.V. (Achmea) on arbitration under intra-EU BITs has been broadly discussed (on this blog, see e.g. here, here, here, here, here, here and here). Nine months after the Court’s ruling, some tribunals have had the opportunity to react. Food for…
It is widely acknowledged that the departure of the UK from the EU, commonly referred to as Brexit, gives rise to multiple legal problems, some of which are bound to lead to actions. While there is a widespread coverage of public law related litigation, there is less knowledge of potential private actions, including those taking…
The initially alluring and subsequently vehemently amended incentives for investments in renewable energy projects across Europe have given rise to a significant number of arbitration claims brought on basis of the Energy Charter Treaty (ECT) and various BITs. Currently there are tens of pending investment treaty arbitrations with respect to renewable energy projects in Spain,…
There has been much comment about recent awards in Energy Charter Treaty (‘ECT’) arbitrations concerning investors’ claims against Spain and other EU states regarding renewable energy projects . The fortunes of investors and states have waxed and waned over the last few years, but overall it seemed that investors faced a considerable hurdle. In recent…
After the enlargement of the European Union in 2004, many eastern bloc countries acceded to the European Union. BITs entered into between the eastern bloc and the western bloc were transformed into the so-called “Intra-EU BITs”. The problems of Intra-EU BITs arose when the European Commission started its campaign against Intra-EU BITs, alleging their incompatibility…
2017 has witnessed a boom in the number of international arbitrations in the energy sector. This is no surprise. Indeed, at the end of 2016, ICSID’s caseload-statistics reported that 42% of cases administered by ICSID arose from the energy sector, which was more than any other sector. As anticipated, this rise has continued throughout 2017….
Currently, several dozen arbitral claims have been lodged by investors from an EU Member-State against another EU Member-State based on the Energy Charter Treaty (ECT). These so-called intra-EU ECT-based arbitrations seem to be increasing, despite attempts by the European Commission to halt them. So far, neither the Respondent-States nor the Commission (as amicus curiae) have…
In an interesting post published on Kluwer Arbitration Blog by Eric Leikin and Martina Magnarelli, it is described in a very comprehensive manner the state of play as regards the soundness of Respondents and European Commission’s arguments refusing the jurisdiction of arbitral tribunals in intra-EU ECT claims. Among these arguments (all rejected by the tribunal…
The 1947 General Agreement on Tariffs and Trade (GATT) is often portrayed as one of the longest lived provisionally applied international treaties. The GATT was signed in October 1947 as a temporary/“stopgap measure” that would later operate under the auspices of the International Trade Organization (ITO), the third pillar of the Bretton Woods system (with…
Reliance on the investor-state dispute resolution (ISDS) mechanism of the Energy Charter Treaty (ECT) is booming, with at least ten new cases registered in the past year alone. Notably, nine of these ten cases – and almost 60% of all publicly reported cases initiated to date – have been brought by an investor from a…
Introduction The investment solar energy saga triggered by the regulatory reforms in the renewable energy undertaken by Spain and Italy is likely to be the new Black Swan in the investment arbitration world, reaching the importance and controversy of the Argentinian crisis of 2001. In addition, the question whether the ISDS system has learnt the…
A previous post analyzed the application of the fair and equitable treatment (“FET”) and legitimate expectations in the recent award in Eiser Infrastructure Ltd. v. Spain (ICSID Case No. ARB/13/36), the first ICSID case to reach a final award related to the measures Spain applied to roll-back certain incentives and benefits offered to promote investment…
On May 4, 2017 the third final award on the Spanish energy arbitration saga was unveiled. After two wins against Charanne and Isolux Infrastructure (both SCC), this time the foreign investors scored a point, leaving the overall score table at 2-1. In Eiser, the first ICSID case to reach a final award related to the…
The ICSID Tribunal in the case Eskosol S.p.A. in Liquidazione v. Italian Republic (ICSID Case No.ARB/15/50) has recently issued a Decision on Respondent’s Application under Rule 41(5) of the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules). In 2015, Eskosol filed a Request for Arbitration based on Italy’s claimed violation of the Energy Charter…
In the context of investor-state dispute resolution in The Netherlands, the Yukos case has recently captured the spotlight in the global arbitration arena and beyond. While much of the attention has been focused on the setting-aside proceedings and the issue of jurisdiction of the arbitral tribunal, the case also raises interesting questions regarding the enforcement…
The 4th Annual Joint Conference on International Energy Arbitration, co-hosted by the Institute for Transnational Arbitration (ITA), the Institute for Energy Law (IEL), and the International Court of Arbitration of the International Chamber of Commerce (ICC), took place on January 12-13, 2017, in Houston, Texas. Under the guidance of conference co-chairs Suzana Blades (ConocoPhillips, Houston),…
Bosnia and Herzegovina (“BiH”) is generally perceived as a good emerging market for investment. The country is rich with natural resources and has a long tradition of industry with favorable and attractive locations and resources. Potential areas of investment include banking and finance, energy and mining, construction and IT (ICT) sector. The relevant national framework…
On 6 December 2016 the German Constitutional Court (GCC) delivered its judgment in the case of Vattenfall and other nuclear power energy companies against Germany. This dispute and final judgment – which have attracted far less attention and criticism from anti-ISDS groups than the Vattenfall dispute currently under the Energy Charter Treaty (ECT) – provide…
Recent developments indicate there may be increasing interest in the creation of alternative forms of dispute resolution for investor-State disputes. One potential alternative is mediation. This post outlines how 2016 has been an important year for investor-State mediation, considers how mediation interacts with investment treaty arbitration, and the benefits and risks associated with such a…
We are pleased to announce the event “The EU and investment arbitration under the Energy Charter Treaty” a conference organised by the Centre of European and International Legal Affairs (CEILA) and supported by the Energy Charter Secretariat. The event will take place in London on the 11th & 12th of February, hosted in the…
In May this year some seventy-five states and institutions adopted (of which sixty-five signed) the International Energy Charter (IEC) in The Hague ministerial conference to herald a new age of global energy co-operation. The Charter is a political declaration by states and it modernises its predecessor the European Energy Charter (1991) – the foundation of…
On June 8, 2015, Pecherskyi District Court of Kyiv (“Pecherskyi Court”) upheld an application lodged by JKX Oil & Gas plc, Poltava Gas B.V. and JV Poltava Petroleum Company (“JKX Companies”) to enforce an emergency arbitrator award rendered under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules”) against…
No doubt that the last three years have been quite busy for the Energy Charter Treaty (ECT) and for the Energy Charter Conference. The number of investor-state arbitration cases under Article 26 of the ECT doubled in this time span, going from thirty known cases to sixty-eight (as reported on the website of the Energy…
