Home - International Litigation Blog
0
blog,ajax_fade,page_not_loaded,,select-child-theme-ver-1.0.0,select-theme-ver-3.4,wpb-js-composer js-comp-ver-4.12.1,vc_responsive
 

international litigation blog

CJEU finds Belgium’s request for an Opinion on the compatibility with EU law of the draft modernized ECT inadmissible

DownloadPrint

The Court of Justice of the European Union (the CJEU) delivered today (16 June 2022), its Opinion on the issue put forward by the Belgian government on whether the draft modernized Energy Charter Treaty (the ECT) (and the investor-State arbitration (ISDS) clause contained in Article 26 of the ECT) was compatible with EU law (check our former article).

The CJEU found this request for an Opinion to be inadmissible.

According to the CJEU, it “does not have sufficient information on the content and, more particularly, on the scope of Article 26 which will appear in the modernised ECT, even though that scope is the subject of the present request for an Opinion“.

The CJEU also reminded that it has already ruled on the question of the compatibility of Article 26 of the ECT with the EU Treaties and that it is clear from the judgment in Komstroy that “compliance with the principle of autonomy of EU law, enshrined in Article 344 TFEU, requires Article 26(2)(c) of the ECT to be interpreted as meaning that it is not applicable to disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State“.

The Opinion of the CJEU is available here.

0

Brussels Court of First Instance Annuls Investment Arbitration Award Allegedly for the First Time

DownloadPrint

This article has been co-authored by Nicholas Lawn (Partner at Van Bael & Bellis), Quentin Declève (Senior Associate at Van Bael & Bellis) and Emmanuelle Rogiest (Associate at Van Bael & Bellis)

On 18 February 2022, the French-speaking Brussels Court of First Instance handed down a judgment in which it set aside a USD 10 million UNCITRAL award that held Poland liable for denial of justice in favor of Manchester Securities Corporation (MSC). This judgment allegedly marks the first time that a Belgian court has set aside an investment arbitration award.READ MORE

0

EU General Court Reaffirms Obligation of National Courts to Review Arbitral Awards’ Compliance with EU Competition Law

DownloadPrint

On 2 February 2022, the EU General Court reaffirmed that EU national domestic courts were bound to annul arbitral awards that did not comply with European Union competition law (Case T-616/18, Polskie Górnictwo Naftowe i Gazownictwo v Commission). This judgment of the EU General Court is a confirmation of the well-established case-law of the Court of Justice of the European Union (the CJEU) in Eco Swiss (Case C-126/97, Eco Swiss).READ MORE

0

CJEU Confirms CILFIT Criteria and Clarifies Case Law on Preliminary References

DownloadPrint

On 6 October 2021, the Grand Chamber of the Court of Justice of the European Union (the CJEU) delivered a judgment clarifying the obligation of national courts to refer questions on the interpretation of EU law to the CJEU (Case C-561/19, Consorzio Italian Management and Catania Multiservizi SpA v. Rete Ferroviaria Italiana SpA).READ MORE

0

PL Holdings: Ad Hoc Arbitration Clause Cannot Be Used to Circumvent Invalid Arbitration Clause in Intra-EU BIT

DownloadPrint

This article has been co-authored by Nicholas Lawn (Partner at Van Bael & Bellis) and Isabelle Van Damme (Partner at Van Bael & Bellis), Quentin Declève (Senior Associate at Van Bael & Bellis) and Rebecca Halbach (Associate at Van Bael & Bellis)

On 26 October 2021, the Court of Justice of the European Union (the CJEU) decided, in its judgment in Case C-109/20 Republic of Poland v PL Holdings, that where an investor-State arbitration clause in an intra-EU bilateral investment treaty (BIT) is invalid under European Union (EU) law, investors cannot rely on a tacit ad hoc arbitration agreement with identical content to the arbitration clause. Importantly, the CJEU clarified that EU Member States must contest the jurisdiction of an arbitral tribunal in such a situation and national courts of the Member States must uphold an action to set aside an arbitration award made on the basis of an arbitration agreement that is contrary to EU law.READ MORE

0

Can EU Member States Replicate Plurilateral Agreement on Intra-EU BITs to Implement Komstroy Judgment?

DownloadPrint

On 2 September 2021, the Court of Justice of the European Union (the CJEU) handed down a judgment in Republic of Moldova v. Komstroy LLC, in which it ruled that intra-EU investment arbitration under the Energy Charter Treaty (ECT) was incompatible with EU law.

As a consequence of that judgment, the European Union and the EU Member States will soon need to take appropriate actions to implement and manage the legal consequences of that decision.

In this short blog post, I share some of my thoughts that I developed when preparing for my presentation at the 2020 EFILA Conference and where I specifically discussed the possibility for EU Member States to exclude intra-EU ISDS arbitral proceedings from the scope of the ECT through the adoption of a plurilateral inter se agreement (the Plurilateral Agreement) similar to the one they adopted to terminate their respective intra-EU BITs. READ MORE

0

Some Initial Reflections on CJEU’s Decision to Uphold Jurisdiction in Case C-741/19 (République de Moldavie)

DownloadPrint

By Giorgia Sangiuolo, Fellow at the Centre of European Law, King’s College London

On 2 September 2021, the Court of Justice of the European Union (the CJEU or the Court) rendered its decision in Case C-741/19 (République de Moldavie)[1]. The decision was given in the context of a reference for a preliminary ruling received from the Paris Court of Appeal on the interpretation of the Energy Charter Treaty (the ECT) in proceedings to set aside an international arbitral award rendered in a dispute between a Ukrainian investor and Moldova.

Following the conclusions reached by Advocate General Szpunar last March[2], the Court concluded that:

– it had jurisdiction to issue a preliminary ruling interpreting an international treaty to which the EU and some Member States are a party in a case which involved neither of them; and

– the application of the Investor State Dispute Settlement (ISDS) mechanism under Article 26 of the ECT between Member States is incompatible with EU law.

On this basis, the Court then moved to provide the referring French court with an interpretation of the concept of “investment” in Article 1(6) of the ECT.

This post sets out some initial thoughts on the decision of the CJEU to assume jurisdiction. After setting out the background of the dispute (section 1) and the reasoning of the CJEU on this point (Section 2), the post maintains that the judgment, and Advocate General Szpunar’s Opinion that the Court closely followed, seem to go well beyond judicial precedents and appear decoupled from any concerns regarding the risk of fragmentation of EU law (Section 3).

The post then concludes that the judgment seems to suggest that any link, however small, with EU law may be relied upon by the Court to interpret international treaties to which the EU is a party, together with its Member States, even when they have a merely potential, future relevance for EU law (section 4). It is argued that the Court’s decision in République de Moldavie seems to be guided by practical aims and seems to reveal that the Court intends to take an active role in shaping the external relations of the EU. The post finally observes that the Court’s decision may have some relevant practical consequences: parties to future ISDS proceedings under EU agreements, whether mixed or exclusive, regardless of their ties with the EU, will want to keep this case in mind if they wish to avoid the involvement of the CJEU in follow on proceedings before the national courts of the Member States.READ MORE

0