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 March 6, 2018, the Court of Justice of the European Union (“CJEU”) delivered its (in)famous Achmea judgment (Case C-284/16), which subsequently became synonymous with the demise of investor-state arbitration in bilateral investment treaties between Member States of the European Union (“intra-EU BITs”). In this decision, the CJEU concluded that investor-state arbitration clauses in intra-EU…
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…
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 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….
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…
By a 4-3 majority, the Irish Supreme Court held in Costello v Government of Ireland that the Constitution precludes Irish ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states. Inevitably, the decision has been compared with Achmea and CJEU Opinion 1/17. This post looks at…
The last decade was not easy for investment arbitration in general, but it faced particular difficulties within the European Union (‘EU’). In recent years, the European Commission has pursued (with success) eradication of this form of international dispute settlement mechanism between foreign investors from one EU Member State and an EU Member State (host state),…
The Amsterdam district court has recently refused to order the termination of a London-seated intra-EU investment arbitration against Poland. Whilst the outcome of the judgment is hardly surprising, the decision contains some interesting thoughts on the ‘desirability’ of the Achmea decision. This blog will discuss the current status of Achmea in the case law 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,…
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…
The Spanish Cases Saga illustrates the arduous task of balancing the host state’s right to regulate and an investor’s economic interests. This post summarizes the tribunal’s reasoning in Novenergia v. Spain and Stadtwerke München v. Spain regarding FET breaches in the energy sector. The post argues that the latter case adopts a clearer analysis of…
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…
‘Sunset’ (or ‘survival’) clauses extend the effects of the relevant investment treaty after its termination. They provide that the protection afforded by the treaty is maintained for a further period of time after termination to investments made during the lifetime of the treaty. As such, sunset clauses have an ‘entrenchment effect’ limiting the ability of…
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…
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…
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…
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…
