The Green Power arbitral tribunal is the first tribunal
ever (and so far, the only one) that accepted the EU law jurisdictional
objections raised by an EU Member State. For this reason alone, this decision
is historic. Instead of adopting a public international law perspective for
determining the question whether it has jurisdiction, the arbitral tribunal
adopted an European law perspective and therefore considered itself bound by
the CJEU jurisprudence regarding Achmea and Komstroy.
With its decision, which came out only a week before the Contracting Parties to
the ECT concluded their modernisation negotiations in which the EU and its
Member States agreed to carve out the arbitration provision for intra-EU ECT
disputes, the arbitral tribunal showed that it had a good sense of what was to
come in any event. The consequences of all this are that European investors
will be stuck with the domestic courts of the Member States and the European
Court of Human Rights – with all their limitations.