Escalated interactions between EU energy law and the Energy Charter Treaty

أثر أحکام محکمة العدل الأوروبیة على التحکیم الاستثماری بموجب معاهدة میثاق الطاقة لعام 1994: إشارة خاصة إلى قرار محکمة العدل الأوروبیة بشأن قضیة Achmea فی 6 مارس 2018

“…(8) Although such arrangements were sharing a common purpose to enhance and improve major operations in energy markets, they could not achieve their goal due to many challenges arising from certain difficulties concerning the implementation of their provisions. (9) The ECT is currently one of the commonly used instruments in many investment arbitration cases, but most of the rulings that have been made in such cases tend to uphold the EU laws at the expense of the ECT. The Achmea Case ruling standing as a good example in this instance where the ECT being excluded from application, a matter that raised many questions relating to the relevance of the treaty in the EU arbitration systems.…”

“…They may jeopardize future efforts to settle arbitration cases under the ECT. (9) This study examines the possible impacts of these new developments on investment arbitration under the ECT with special reference to the Achmea Case ruling. This is in order to show how such rulings can negatively impact the future of investment agreements and cases of investment arbitration by highlighting the challenges that might be faced in dispute resolution in the European union under the application of the EU laws and the intra-state agreements.…”

“…This will probably be the case when the ECJ later or one day will determine the issue concerning the ECT' s incompatibility with the TFEU. (41) Amidst the challenges facing arbitration under ECT, it is argued that the ECT still a major dispute resolution mechanism that can be invoked during investor-state arbitration cases. According the to the UN Conference on Trade and Development (UNCTAD), it is estimated that nearly 20% of arbitrations across the world invoking the ECT, in which a total of 113 arbitration cases that involved the ECT.…”

“…It gave the EU mandate to take legislative measures to ensure proper functioning of the energy markets, to enhance energy security and efficiency, and to promote the development of energy networks across the EU member states. (2) The laws governing energy sector in the EU are enacted through defined law making process including guidelines and directives. While the regulation of gas and electricity sectors took place earlier as far as the 1990s, the regulation of energy sector took place later as far as the year of 2009.…”

The End of the Game: The Autonomy of the EU Legal Order Opposes Arbitral Tribunals under Bilateral Investment Treaties Concluded between Two Member States

“…Commission's theory according to which EU law forms part "of the rules and principles of international law applicable to the Parties' dispute under Article 26(6) ECT". 65 Therefore, EU law prevails not only from the perspective of EU law, but also from the perspective of international law.…”