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Manuel Casas
Journal of International Arbitration
Volume 42, Issue 1 (2025) pp. 77 – 94
httpss://doi.org/10.54648/joia2025011
Abstract
This article analyses the enforcement of intra-EU investor-state awards from a policy-oriented perspective. The article considers that an exclusively doctrinal or formalistic approach to the question leads to a methodological blind spot, which ignores the broader context of these enforcement actions and the policy considerations that arise from them. To overcome that, the article focuses on the reactions of relevant states following the Court of Justice of the European Union’s (CJEU’s) judgments in Achmea and Komstroy. It explains how, rather than generate backlash, those judgments received widespread support from the EU-Member States, which then took further actions to implement them. Finally, the article considers how, even within the limits of the current enforcement regime, enforcing courts may take into account some policy considerations when determining whether to enforce intra-EU investor-state awards.
Keywords
Arbitration, Enforcement, International, Policy, Court of Justice of the European Union, investor state, Achmea, Komstroy, Backlash, ICSID
Extract
Comparing the approach to the alter ego doctrine in the United States (US) with approaches taken, in the United Kingdom (UK), Canada, Switzerland and Australia reveals that courts in the US, tend to follow a stringent framework based on a set of factors. By contrast, other jurisdictions, undertake a broad ‘control and functions’ analysis. The Gécamines judgment in the UK has, strengthened the presumption of separate status to a greater degree than seen elsewhere. Moreover,, the UK relies on a matching up of liability and immunity, whereas the US appears to be more, concerned with equity in terms of, for example, the foreign state not benefiting unfairly in the US, legal system. These variations are significant given the huge assets concentrated in state-owned, entities and the question of their availability to satisfy debts owed by the state.
Journal of International Arbitration