190 NEWSLETTER 2021 The Komstroy Decision of the CJEU Although referral to the CJEU contained a question on the interpretation of “investment” under the ECT, the assessment of the CJEU went far beyond this issue. In March 2021, Advocate General (“AG”) Szpunar opined not only on the scope of investment within the ECT, but also assessed the validity of intra-EU arbitrations under the ECT.4 Since the dispute at issue was not intra-EU, the jurisdiction of the CJEU was highly controversial. The CJEU confirmed its jurisdiction by underlining that: • the EU has an interest in the uniform interpretation of the ECT provisions, • having Paris as the seat of the arbitration calls for the application of EU law by the French courts and • Art. 19 TEU requires ensuring compliance with EU law. The CJEU continued its assessment by referral to the primacy and autonomy of EU law by adding that: • uniform interpretation of EU law is crucial, • there is a risk that arbitral tribunals constituted under Art. 26 of the ECT might interpret and apply EU law, • in cases where such tribunals are located outside the EU judicial system, they cannot be regarded as EU Member State courts under Art. 267 TFEU, • awards rendered by such tribunals governed by the ECT cannot be reviewed by EU Member State courts, thus creating a risk of no-referral to the CJEU for questions of EU law. The CJEU answered the referral question of the Paris CoA in the affirmative. Thus, it concluded that acquisition of a claim arising from an electricity supply agreement does not constitute an “investment” since (i) the asset at issue cannot be regarded as undertaking an eco4 Opinion of AG Szpunar of 03.03.2021, Republic of Moldova v Komstroy LLC, C-741/19, ECLI:EU:C:2021:164.
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