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Mustafa T. Karayigit
European Foreign Affairs Review
Volume 29, Issue 1 (2024) pp. 85 – 114
https://doi.org/10.54648/eerr2023031
Abstract
The article
scrutinizes the ex-post constitutional compatibility with the autonomy of the
EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism
established in Article 26 of the Energy Charter Treaty (ECT). Whereas the
compatibility of intra-EU aspects of ECT arbitration is examined primarily in
the light of the EU Court of Justice’s
(CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects
is examined primarily in the light of its Opinion 1/17. Since those Court
decisions are indeed in line with the previous case-law, the article does not
need to delve into earlier case-law. Although the issue is analysed from the standpoint
of EU law, awards of the arbitral tribunals before which the ECT is invoked
have been taken into consideration especially to ascertain whether the CJEU’s concerns for preserving the autonomy of the EU legal order
against any possible legal effects of these awards were justified. The article
also analyses the principal options to remedy the incompatibility of the ISDS
mechanism under the ECT with the autonomy of the EU legal order.
Keywords
Autonomy of the EU Legal Order, Investor to State Dispute Settlement, the Energy Charter Treaty, Intra-EU Arbitration, Extra-EU Arbitration
Extract
The article
scrutinizes the ex-post constitutional compatibility with the autonomy of the
EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism
established in Article 26 of the Energy Charter Treaty (ECT). Whereas the
compatibility of intra-EU aspects of ECT arbitration is examined primarily in
the light of the EU Court of Justice’s
(CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects
is examined primarily in the light of its Opinion 1/17. Since those Court
decisions are indeed in line with the previous case-law, the article does not
need to delve into earlier case-law. Although the issue is analysed from the standpoint
of EU law, awards of the arbitral tribunals before which the ECT is invoked
have been taken into consideration especially to ascertain whether the CJEU’s concerns for preserving the autonomy of the EU legal order
against any possible legal effects of these awards were justified. The article
also analyses the principal options to remedy the incompatibility of the ISDS
mechanism under the ECT with the autonomy of the EU legal order.