On 21 December 2023 the Court of Justice of the European Union (“CJEU”) handed down its decision in Case C-124/21 P, International Skating Union v. European Commission. The CJEU agreed with the 16 December 2020 judgment of the General Court of the EU (“GCEU”), and with the  European Commission in CASE AT. 40208 International Skating Union’s Eligibility rules, that the rules in the International Skating Union (“ISU”) regulations (“Eligibility Rules”) punishing skater members for competing in unauthorized events offended against EU competition law (Art. 101 TFEU). But, contrary to the GCEU ..read more

The review mechanism of sports arbitration in Switzerland is under scrutiny. After previous criticism from a human rights perspective, the Court of Justice of the European Union (“CJEU”), in its recent International Skating Union (“ISU”) decision, found that the standard of review applied by the Swiss Federal Court (“SFC”) to mandatory arbitration awards by the Court of Arbitration for Sports (“CAS”) is insufficient to protect economic rights deriving from EU competition law (see previous blog post here). This means bad news for Sports Governing Bodies (“SGBs”), whose escape from EU competitio ..read more

In line with the Blog’s tradition of “year-in-review” series, this post looks back at some of the key investor-State arbitration developments that took place in Europe in 2023 as we covered them on the Blog (for relevant previous Year-in-Review coverage, see here and here). With the developments in the modernisation of the Energy Charter Treaty and, relatedly, the wave of withdrawals by the Member States of the European Union (“EU”) being covered by another post in this series, this post focuses primarily on key judicial developments. It then moves to recap a couple of legislative and policy i ..read more

The German Federal Court of Justice (“BGH”) set off a heated debate when it vacated an arbitral award based on the false application of certain sections of the German Competition Act (GWB) on September 27, 2022 (BGH KZB 75/21), conducting a full review of the arbitral award on the merits. German practitioners were concerned that such a de facto second instance deprives German seated arbitration proceedings of one of their key advantages compared to state court litigation and thereby diminishes their attractiveness. Peter Sester analyzed the BGH’s position and put it within the context of inter ..read more

On 7 July 2023, the European Commission issued its proposal for a Council decision on the withdrawal of the European Union from the Energy Charter Treaty (ECT). The proposal comes more than 6 months after the Commission-sponsored ECT modernization package failed to be adopted and perhaps undermines any hope that a modernized ECT will be agreed any time soon. However, whilst it now seems highly likely that both the EU and its Member States will withdraw from the treaty (and refuse to agree to the modernized text), there remains at least 26 non-EU Contracting Parties to the ECT including States ..read more

Seven years ago, Germany’s Federal Court of Justice (Bundesgerichtshof, BGH) set off an avalanche that buried most of the European investment arbitration landscape. The BGH’s order of June 3rd 2016 referred to the Court of Justice of the EU (CJEU) a long debated question: Are intra-EU investment arbitrations compatible with EU law? They are not, the CJEU famously ruled in its seminal Achmea judgment. A multitude of proceedings followed in Achmea’s aftermath. Both the CJEU and national courts inside and outside the EU had to clarify what Achmea means in practice and how far its effects reach. I ..read more

The modernization of the European Charter Treaty (ECT) has been debated among scholars, with some supporting it and others criticizing the process and outcome. The vote on the modernization was postponed indefinitely due to ongoing debates about the Treaty’s future, including various withdrawals from it. The modernization process encapsulates broader reform efforts and attempts to balance protecting foreign investment while preserving host state sovereignty. This post compares the Modernized ECT with other ISDS reform processes, namely the United States-Mexico-Canada Agreement (USCMA) and the ..read more

Whenever litigating against states or sovereign entities – or international organisations for that matter – outside of their home jurisdiction there is a roadblock to consider: immunities. On closer inspection, immunities turn out as two roadblocks: immunity from jurisdiction and immunity from enforcement. Whereas the general assumption is that an agreement to arbitrate waives immunity from jurisdiction, immunity from enforcement is a common obstacle to cashing in on an award (as demonstrated by the struggles many investors faced trying to enforce awards in the Argentinian cases or the lengthy ..read more

The Paris Court of Appeal has recently sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the Energy Charter Treaty (ECT) in the ongoing Republic of Moldova v. Komstroy case.   A 20-Year-Old Tale The Republic of Moldova v. Komstroy case highlights the contradicting approaches to the notion of investment under the ECT of the French Courts. This is a two-decade-old tale that takes us back to the late 1990s, when Ukrainian company Energoallians (Komstroy’s predecessor-in-interest) concluded two tripartite contracts for the supply of el ..read more

The recently leaked treaty for the termination of intra-EU BITs can be seen as the culmination of an ongoing effort by the European Commission to discourage investment arbitration between Member States, reflecting, in the eyes of many, a tension between public international law and EU law. In spite of this, and even after the Court of Justice of the European Union’s (CJEU) Achmea decision, intra-EU proceedings are still being instituted, most recently in the cases of VM Solar Jerez v. Spain and Strabag v. Germany. In the aftermath of Achmea, EU Member States expressed their intention to termin ..read more