This note deals with the current legal framework of investor-State arbitration under the Energy Charter Treaty (the “ECT”). The landscape of the application of the ECT has become blurry after several major developments in recent years: withdrawals, modernisation of the ECT, not to mention the impact of the Komstroy decision,[1] which has by no means […]
Intra-EU Investment Arbitration After Achmea
This note looks into the reality of intra-EU investment arbitration after the judgment of the Court of Justice of the European Union in Achmea. Achmea was initially referred to as a groundbreaking decision, which caused further steps to be taken to prevent intra-EU investment arbitration. However, recent decisions and judgments may call into question the […]
Denial of Benefits in Investment Arbitration
Many of the Multilateral and Bilateral Investment Treaties (BITs) concluded in recent decades contain a provision often referred to as a denial of benefits clause. Examples include the Netherlands Model BIT[1], the Comprehensive Economic and Trade Agreement between Canada and Europe (CETA)[2] and most notably the Energy Charter Treaty (ECT).[3] The aim of denial of […]
Intra-EU Arbitration under the ECT Found Incompatible with EU Law
On 2 September 2021, in Republic of Moldova v. Komstroy, the Court of Justice of the European Union (the “CJEU”) ruled that Energy Charter Treaty (“ECT”) based intra-EU arbitrations were contrary to EU law.[1] Background of the Case Energoalians, a Ukrainian producer initiated, an ad hoc arbitration procedure provided for in Article 26(4)(b) of the […]
Resolving Energy Disputes Through Arbitration
Energy projects are usually long, complex and require a substantial level of capital. Additionally, the sector has significant exposure to geological events, political changes and environmental regulations. For these reasons, disputes are common in the energy sector, and arbitration has become the preferred method of resolving these disputes, particularly at the international level.[1] As noted […]