In this ar tic le the aut hor exa mi nes de ci si ons ren de red by the UN-CI TRAL ar bi tral tri bu nal in an in vest ment ca se Ac hmea v. Slo va kia and jud gment of the Eu ro pean Co urt of Ju sti ce re gar ding the com pa ti bi lity of the in ve stor-Sta te dis pu te set tle ment pro vi sion in an in tra-EU BIT with EU law relating the Ac hmea ar bi tral award on the me rits. Gi ven that the ECJ fo und in com pa ti bi lity bet we en the two such de ci sion might ha ve wi de-ran ging con se qu en ces. He re the aut hor as ses ses ar gu ments in dif fe rent de ci si ons from the per spec ti ve of frag men ta tion of in ter na ti o nal law, mo re pre ci sely from the per spec ti ve of con cepts and ar guments de ve lo ped wit hin the In ter na ti o nal Law Com mis sion Re port on Frag menta tion of In ter na ti o nal Law. Whi le the frag men ta tion is sue was di scus sed at the early sta ges of ar bi tral pro ce e dings it was la ter aban do ned and re ma i ned un menti o ned by the ECJ. The ca u se of dif fe rent ta kes on the re la ti on ship bet we en dispu te set tle ment pro vi si ons in in tra-EU BIT and EU law co uld well be de scri bed not as a nor ma ti ve but rat her as a con flict bet we en dif fe rent fo rums. Ju ris dic ti o nal con flict thus ga ve ri se to the pro blem of frag men ta tion in its strict sen se-ina bi lity of a sta te to per form two tre aty obli ga ti ons si mul ta ne o usly.
The EU and ISDS have been embroiled in an exhausting feud over intra-EU investment disputes which may still not reach its climax despite several dramatic and radical moves by the European Union and its Member States against the nearly unfettered resistance of the ISDS. Green Power v. Spain is the first international investment case in which the tribunal denied jurisdiction due to an incompatibility of the arbitration clause in the Energy Charter Treaty with EU law in light of the Achmea case, but also the first case where the rule of lex superior was employed to tip the scale in favour of EU law. The overview of the award will be presented against different backgrounds: massive investment case law uniformly denying intra-EU preliminary objections on one hand, and concerted actions of the EU and its Member States to construct a dam against intra-EU investment cases, on the other. The aim of this case note is to review the possible relevance of the Green Power v. Spain arbitral award and the argument that EU law is lex superior as a matter of international law, in pending and future intra-EU investment disputes, and to assess to what extent different factors, such as the seat and rules of arbitration and general rules of international law, molded the reasoning of the tribunal. The arbitral award is a meticulous decision with instructive arguments on how to situate supremacy of EU law within the law of treaties while navigating the rough waters of enduring conflicts amid different international agreements and between various levels of governance. Given that the tribunal offered a variety of reasons to uphold the applicability of EU law to determine jurisdiction, there is the distinct possibility that the award might have an impact on other investment tribunals.
International investment cases show the frequent use of good faith arguments by both investors and respondent states. These cases also illustrate how parties and tribunals tend to conceptualize the good faith principle which has become an important rule of international investment law. This article will explore recent trends in order to assess the importance of this argument for both parties and at different stages of the proceeding. This article will also provide an overview of responses given by the tribunals faced with good faith arguments. Whereas claimants have traditionally relied on this concept to argue the breach of fair and equitable treatment and legitimate expectations, recent cases such as Inceysa, Phoenix and TSA Spectrum, indicate a new defence strategy for respondent states. Given the fact that investment tribunals have shown willingness to treat the good faith principle as autonomous and as a self-standing standard, the possibilities for respondent states have increased. Respondent states can rely on good faith to deny the right of claimants to seize the tribunal (Article 41(5) of the ICSID Rules), to challenge the jurisdiction of the tribunal or admissibility, to contest the right of the claimant to have a decision in its favour, or to challenge the right to compensation.
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