189 ARBITRATION LAW debt from Moldtranselectro to Energoalians, who later on initiated an arbitration against the Republic of Moldova (“Moldova”) by arguing that the State infringed2 the ECT and the Moldova-Ukraine Bilateral Investment Treaty (“BIT”).3 In October 2013, a Paris-seated Arbitral Tribunal (“Tribunal”) concluded that Moldova was liable for breaching the ECT’s fair and equitable treatment standard. The award was rendered by a majority, since the Chair of the Tribunal issued a dissenting opinion arguing that acquisition of a right to claim for a debt by Energolians did not constitute an investment under the ECT. In November 2013, Moldova initiated a setting-aside procedure against the arbitral award before the Paris Court of Appeal (“CoA”). Meanwhile, another Ukrainian company, Komstroy, became a successor-in-law to Energoalians. In April 2016, the Paris CoA agreed with the dissenting opinion of the Chair and annulled the arbitral award, on the ground that the Tribunal lacked jurisdiction, due to the fact that a capital or economic contribution would suffice as an investment under the ECT, but acquisition of a debt arising under a commercial transaction would not. Komstroy appealed against the annulment decision before the Court of Cassation. In March 2018, the annulment decision was overturned. In its decision, the Court of Cassation underlined that the Paris CoA had interpreted the concept of “investment” by adding a condition to it not provided for in the ECT. Accordingly, the arbitral award against Moldova was reinstated. In its second review, the Paris CoA stayed the proceedings and referred the question of the interpretation of the term “investment” under the ECT to the CJEU. 2 Energoalians’ claims against Moldova included breach of treatment standards such as: indirect expropriation, infringement of fair and equitable treatment/minimum standard of treatment, discrimination, and denial of justice. 3 The Republic of Moldova - Ukraine Bilateral Investment Treaty (“BIT”), signed on 29.08.1995, entered into force on 27.05.1996. https://investmentpolicy.unctad. org/international-investment-agreements/treaties/tips/2558/moldova-republic-of- --ukraine-bit-1995-. (Access date: 01.10.2021).
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