192 NEWSLETTER 2021 question of EU law at stake.9 What is crucial in terms of international law is that the CJEU’s narrow conclusion on the notion of “investment” under the ECT10 is contrary to the jurisprudence of investment tribunals.11 The CJEU’s position on invalidating referral to arbitration as per the ECT is likely to create further controversies and resistance by arbitral tribunals, considering that the ECT is a multilateral treaty. It should not be omitted that the EU is a party itself and bound by the obligations arising from the ECT. In the words of the Escosol Tribunal12, EU law and the ECT belong to separate sub-systems of international law, where they co-exist with no precise hierarchy.13 Conclusion Following the path of Achmea, the CJEU has rendered another controversial decision in terms of referral to arbitration in intra-EU investment disputes. This time, the CJEU specifically focused on incompatibility of the ECT governed disputes, which were out of the scope of the Termination Agreement leading to termination of intraEU BITs. The Komstroy decision is far from being convincing since the CJEU ruled in an extra-EU dispute having no question of EU law at stake. It is also controversial since not only Member States, but also 9 Birengel, Tilbe: “Impact of the Achmea Judgment on Investment Arbitration”, Erdem & Erdem Newsletter, October 2018, http://www.erdem-erdem.av.tr/en/insights/impact-of-the-achmea-judgment-on-investment-arbitration. 10 The CJEU concludes in § 80 of Komstroy that Art. 1(6) of the ECT has an exhaustive list for the types of assets within the scope of investment, whereas tribunals often consider this list a partial list. 11 Fouchard Clement, Thieffry Vanessa, “CJEU Ruling in Moldova v. Komstroy: the End of Intra-EU Investment Arbitration Under the Energy Charter Treaty (and a Restrictive Interpretation of the Notion of Protected Investment)”, 07.09.2021, (Access date: 01.10.2021). 12 Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, https://jusmundi.com/en/document/decision/en-eskosol-s-p-a-in-liquidazione-vitalian-republic-decision-on-termination-request-and-intra-eu-objection-tuesday7th-may-2019#decision_5243, para. 181. 13 Monti Alessandro, Fermeglia Matteo, Op-Ed: “Completing the unfinished Achmea business in the Komstroy case: farewell to intra-EU ECT-based investment arbitration?”, EU Law Live, (Access date: 01.10.2021).
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