The Future of Arbitration under the Energy Charter Treaty

The briefing argues that the Komstroy ruling effectively bars investor-State dispute settlement (ISDS) between EU investors and Member States under the ECT, creating systematic obstacles to the recognition and enforcement of such awards within the EU. It highlights that EU Member States are now obliged to challenge these awards and that EU State aid rules may further prevent the payment of compensation. The document specifically applies these legal hurdles to pending cases brought by RWE and Uniper against the Netherlands regarding its coal phase-out policy.

• The CJEU's Komstroy ruling establishes that the ISDS provisions of the Energy Charter Treaty (ECT) are not applicable to disputes between an EU Member State and an investor from another Member State, as such mechanisms undermine the autonomy of EU law.
• Following the Komstroy and PL Holdings decisions, EU Member States are legally required to systematically challenge the validity of intra-EU arbitration awards and must refuse to enforce them in national courts.
• Intra-EU investment awards may be classified as prohibited State aid under Article 107 of the TFEU if they provide an economic advantage to selected enterprises that distorts competition in the internal market, potentially requiring the recovery of paid sums.
• While intra-EU ECT awards are largely unenforceable within the EU, investors may attempt enforcement in non-EU jurisdictions, though the European Commission has actively intervened as amicus curiae in such cases to oppose enforcement.
• The arbitration claims brought by RWE and Uniper against the Netherlands for its coal phase-out are likely to face significant jurisdictional obstacles and potential inadmissibility in German courts based on CJEU jurisprudence.

APA

de Anzizu, H., Delarue, J., & Van den Berghe, A. (2021). The Future of Arbitration under the Energy Charter Treaty. ClientEarth. https://www.clientearth.org/media/frmdmove/ciel-ce-legal-briefing-future-of-intra-eu-ect-arbitration-131221.pdf

Chicago

de Anzizu, Hélionor, Juliette Delarue, and Amandine Van den Berghe. The Future of Arbitration under the Energy Charter Treaty. ClientEarth, 2021. https://www.clientearth.org/media/frmdmove/ciel-ce-legal-briefing-future-of-intra-eu-ect-arbitration-131221.pdf.

Wikipedia

{{cite report |last1=de Anzizu |first1=Hélionor |last2=Delarue |first2=Juliette |last3=Van den Berghe |first3=Amandine |title=The Future of Arbitration under the Energy Charter Treaty |publisher=ClientEarth |date=December 2021 |url=https://www.clientearth.org/media/frmdmove/ciel-ce-legal-briefing-future-of-intra-eu-ect-arbitration-131221.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{deanzizu2021future, author = {de Anzizu, Hélionor and Delarue, Juliette and Van den Berghe, Amandine}, title = {{The Future of Arbitration under the Energy Charter Treaty}}, institution = {ClientEarth}, year = {2021}, month = dec, url = {https://www.clientearth.org/media/frmdmove/ciel-ce-legal-briefing-future-of-intra-eu-ect-arbitration-131221.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }