In its recent judgment in Republic of Moldova (also
known as the Komstroy case), the Court of Justice of the
European Union (CJEU) took the view that the arbitration clause contained in
Article 26(2)(c) of the Energy Charter Treaty (ECT) does not apply to intra-EU
investor-State disputes. This article provides a critical analysis of this
ruling and highlights the methodological flaws of its reasoning. As part of
this analysis, it discusses the implications of the Energy Charter Treaty’s
nature as a “mixed agreement” for the scope of application of Article 26(2)(c)
and the CJEU’s jurisdiction to interpret the ECT. It also discusses the proper
interpretation of Article 26(2)(c) pursuant to the rules on treaty
interpretation laid down in the Vienna Convention on the Law of Treaties,
including with the help of documents from the ECT’s travaux
préparatoires. Finally, the article deals with Republic of Moldova consequences
– or rather the lack thereof – for arbitral tribunals and the courts of non-EU
countries.