Intra EU Investment Arbitration Under Energy Charter Treaty: Can It Be Replaced ? Submitted by Kabir Singh, LLM (Netherlands)
The EU has made its stance clear that investment arbitration in intra EU BITs are incompatible with EU law after the preliminary ruling by the CJEU in the case of Slovakische Republic Vs Achmea (C284/16) . This is also evident from the recent termination of the intra EU BITs by most of the member states by a Plurilateral Treaty which provides in Article 2 and 3 that the sunset clauses contained in those treaties shall not produce legal effect. However, the Plurilateral Treaty is not applicable to Energy Charter Treaty (ECT), which is a multilateral treaty to which the EU and as well as its member states, except Italy, are contracting parties. The ISDS provision in the ECT continues to be a legal basis for initiation of arbitration proceedings. Nonetheless, a situation can be seen as emerging, although hypothetical, that the Achmea ruling and the Plurilateral Treaty are applicable to the ECT and as a consequence of which investment arbitration is not available to foreign investor...