Available in Russian
Author: Aleksey Shiyanov
DOI: 10.21128/2226-2059-2022-2-132-153
Keywords: dispute within the European Union; jurisdictional objection; separation clause; applicable law; Achmea Issue; declarations on the consequences of the Achmea Issue
The competition of the international legal regime for the protection of investments, in both material and procedural aspects, within the framework of the Energy Charter Treaty as well as the treaties establishing the European Union and determining its functioning, gives particular relevance to the subject matter. International investment arbitrations substantiate their right and obligation to consider claims of European investors against the member States of the European Union by resolving the conflict between the two regimes by interpreting the provisions of the Energy Charter Treaty in the light of common methods of interpretation of international treaties. The answer to the question of the jurisdiction of these tribunals for the relevant category of disputes depends on the format of the implementation of the investor's right to protection from the actions of the receiving State and the prospects of an appropriate international legal regime based on the prior consent of the receiving States to transfer disagreements to international arbitration. In this regard, it is advisable to systematize the conclusions of international investment arbitrations as to such issues as the affiliation of investors to another contracting party, the implied provision for the separation of regimes, the law applicable to the establishment of jurisdiction, the genesis of the constituent treaties of the European Union, the significance of the Decision of the Court of the European Union in the case of Slovak Republic v. Achmea BV and statements of the Member States of the European Union on its consequences, the timeliness of the application of a jurisdictional objection, and the possible non-recognition of the rendered decision on the merits. At the same time, it is justified to refer to the most significant cases considered both before and after the Court of the European Union made this decision. This approach allows us to conclude that the main trend remains the recognition by the tribunals of their competence to consider investor claims against host States within the European Union, at least those claims initiated before the Achmea Decision. The jurisdiction of international investment arbitration in disputes affecting the European Union energy sector and related to the Energy Charter Treaty will inevitably narrow down to the requirements imposed by investors of European Union non-member States and to the European Union as a contracting party.
About the author: Aleksey Shiyanov – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Southern Federal University, Rostov on Don, Russia.
Citation: Shiyanov A. (2022) Voprosy yurisdiktsii v praktike mezhdunarodnogo investitsionnogo arbitrazha po sporam vnutri Evropeyskogo Soyuza, vytekayushchim iz Dogovora k Energeticheskoy khartii [Issues of jurisdiction in the practice of international investment arbitration of disputes within the European Union arising from the Energy Charter Treaty]. Mezhdunarodnoe pravosudie, vol. 12, no. 2, pp. 132–153. (In Russian).
References
De Abreu Duarte F. (2019) “But the Last Word Is Ours”: The Monopoly of Jurisdiction of the Court of Justice of the European Union in Light of the Investment Court System. European Journal of International Law, vol. 30, no. 4, pp. 1187–1220.
Centeno Huerta S., Kuplewatzky N. (2019) On Achmea, the Autonomy of Union Law, Mutual Trust and What Lies Ahead. European Papers. A Journal on Law and Integration, vol. 4, no. 1, pp. 61–78.
Declève Q. (2019) Achmea: Consequences on Applicable Law and ISDS Clauses in Extra-EU BITs and Future EU Trade and Investment Agreements. European Papers. A Journal on Law and Integration, vol. 4, no. 1, pp. 99–108.
Ispolinov A. (2021) Printsipy avtonomnosti i prioriteta prava ES kak oruzhie Suda Evropeyskogo Soyuza v konflikte s investitsionnymi arbitrazhami. Chast’ 1. Delo Achmea [The principles of autonomy and priority of EU law as a weapon of the European Court of Justice in the conflict with investment arbitration. Part 1. Achmea case]. Rossiyskiy yuridicheskiy zhurnal, no. 2, pp. 56–77. (In Russian).
Ispolinov A. (2021) Printsipy avtonomnosti i prioriteta prava ES kak oruzhie Suda Evropeyskogo Soyuza v konflikte s investitsionnymi arbitrazhami. Chast’ 2. Posle dela Achmea [The principles of autonomy and priority of EU law as a weapon the European Court of Justice in the conflict with investment arbitration. Part 2. Following the Achmea case]. Rossiyskiy yuridicheskiy zhurnal, no. 3, pp. 31–48. (In Russian).
Lifshits I. (2019) Mezhdunarodnye dogovory gosudarstv – chlenov Evropeyskogo Soyuza s tret’imi stranami v praktike Suda ES [International agreements of the EU Members with the third countries in the CJEU jurisprudence]. Mezhdunarodnoe pravosudie, vol. 9, no. 3, pp. 84–101. (In Russian).
Rachkov I. (2019) Obzor resheniy mezhdunarodnykh investitsionnykh arbitrazhey za 2017–2018 gody: voprosy kompetentsii (yurisdiktsii) i priemlemosti iska [Overview of the awards rendered by international arbitration tribunals in 2017–2018: the questions of jurisdiction and admissibility of claims]. Mezhdunarodnoe pravosudie, vol. 9, no. 4, pp. 111–132. (In Russian).