The Achmea judgment of the Court of Justice of the EU (CJEU) found that
arbitration clauses in bilateral investment treaties (BITs) between Member
States of the European Union are incompatible with European Union law. Following
this, Member States attempted to invoke this judgment in relation to similar
intra-EU arbitrations under the Energy Charter Treaty (ECT). Tribunals
established under the ECT have however generally rejected the applicability of
the Achmea judgement. While the EU Commission and the majority of Member
States concluded that this judgment also precludes intra-EU ECT arbitrations, a
few Member States held the opposite view. The future of intra-EU ECT
arbitrations therefore seems fragile in the least. A closer analysis of the
decisions of ECT Tribunals, and the relationship between obligations under
European Union law and international law however argues that the future of such
intra-EU ECT arbitrations is not as fragile as it may seem.