Document Type

Article

Publication Date

2023

Abstract

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an end to a different choice of venue. This initiative is in line with the often-expressed volition of the Luxembourg courts to preserve their monopoly over the interpretation of EU laws. While, from a strict legal perspective, the position of the Luxembourg courts is not entirely persuasive, and we advance in what follows arguments to this effect, it appears that ultimately discussion of the issue will soon be considered “water under the bridge” and the CJEU will preserve its monopoly over the adjudication of intra-EU investment disputes in the foreseeable future. With this arrangement, although EU member states can participate as individual entities in fora like the ECT, they (and their investors) can submit disputes arising from their participation therein only to Luxembourg.

Disciplines

Dispute Resolution and Arbitration | European Law | Law

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