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international litigation blog

CJEU Rules that Judgments on Awards Circumventing Brussels Regulation Cannot Form Basis for Non-recognition of Irreconcilable Judgments

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This article has been co-authored by Nicholas Lawn (Partner at Van Bael & Bellis) and Helin Laufer (Associate at Van Bael & Bellis)

In a recent judgment in the case of London Steam-Ship Owners’ Mutual Insurance Association Limited v. Kingdom of Spain (Case C‑700/20, Judgment of 20 June 2022) (the Judgment), the Court of Justice of the European Union (the CJEU) issued a preliminary ruling holding that arbitration proceedings initiated in the United Kingdom and the resulting award could not block the recognition of a Spanish judgment requiring an insurer to compensate Spain for the environmental damage caused by the Prestige oil tanker (Prestige) off the coast of Spain.

The CJEU held that the proper interpretation of EU Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation) entails that, although a judgment entered by a court of a Member State in the terms of an arbitral award may, in principle, form the basis for the refusal to recognise a subsequent irreconcilable judgment of the courts of another Member State, a judgment should not be recognised where it would result in an outcome that the court of a Member State could not have reached without infringing the provisions and fundamental objectives of the Brussels Regulation. In short, the English courts were required to recognise the Spanish court’s judgment and the insurer was liable to Spain for EUR 1 billion.READ MORE

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

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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.

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

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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

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

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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

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CJEU Confirms CILFIT Criteria and Clarifies Case Law on Preliminary References

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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

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

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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

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

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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

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