191 ARBITRATION LAW nomic activity in the energy sector as per the ECT and (ii) supply of electricity is a commercial transaction which cannot in itself constitute an investment. Analysis of the Komstroy Decision Komstroy seems to have been rendered as a complementary tool for the EU’s ongoing work on elimination of recourse to arbitration in intra-EU investment disputes. It follows the reasoning of the Achmea decision of the CJEU.5 The Termination Agreement6 of intra-EU BITs does not cover investment disputes governed under the ECT7. Moreover, numerous tribunals dealing with intra-EU investment disputes under the ECT have been resisting the extension of Achmea and refusing to decline jurisdiction in disputes brought before them.8 Considering these, the CJEU’s position in Komstroy becomes not surprising at all. The CJEU is likely to block such resistance to the extension of Achmea’s reasoning in ECT governed disputes until the EU takes a concrete step on the termination/or modernization of the ECT. Yet, it is highly debatable whether the CJEU had grounds for extending Achmea reasoning to Komstroy, considering that Komstroy is an extra-EU dispute with Ukranian and Moldovian parties, with no 5 The Judgment of the Court (Grand Chamber), Case C‑284/16, Slowakische Republik (Slovak Republic) v Achmea BV, Case C-284/16, ECLI:EU:C:2018:158, 06.03.2018. 6 Agreement for the Termination of Bilateral Investment Treaties between the Member States of the EU (Termination Agreement), adopted in May 2020, OJ L 169, 29.05.2020, p. 1–41. 7 The preamble of the Termination Agreement has a clear statement on the matter stating that “this Agreement addresses intra-EU bilateral investment treaties; it does not cover intra-EU proceedings on the basis of Article 26 of the Energy Charter Treaty. The European Union and its Member States will deal with this matter at a later stage”. 8 Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12, the Decision on the Achmea issue, https://www.italaw.com/sites/ default/files/case-documents/italaw9916.pdf. See also Masdar Solar &Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, https://www. italaw.com/sites/default/files/case-documents/italaw9710.pdf.
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