Paper Titles & Abstracts

A series of energy disputes arising out of alleged breaches to international treaties have arisen between EU member states in recent years. All of these cases involve disputes between companies and Eastern European member states of the EU. These treaties, which include bilateral investment treaties (BITs) and the plurilateral Energy Charter Treaty (ECT), provide substantive protections for foreign direct investment. While investment treaty arbitration of this type is flourishing as a form of international dispute settlement, its use as a form of dispute resolution within the EU has been challenged by the EU Commission (in regard to intra-EU treaties). While the Treaty of Lisbon gives the EU exclusive competence over foreign direct investment, the status of intra-EU agreements remains unclear. However, the Commission's position in this regard has been fairly consistent: the application of intra-BITs in dispute settlement proceedings is inconsistent with EU law and its principles (notably the principle of non-discrimination). This has not stopped signatories of these intra-EU BITs from bring claims. In cases such as AES Summit, Eastern Sugar, Eureko, and most recently Electrabel, the EU Commission has intervened in the proceedings of these arbitrations holding that the tribunals do not have jurisdiction. Without exception, the arbitral tribunals have found that they have jurisdiction to hear these disputes and that the application of these treaties does not conflict with European law. Considering that the EU Commission has contested the jurisdiction of these tribunals repeatedly, it is unclear what the future will hold. Is the interpretation of the compatibility of a member states obligations with EU law for the Commission or for arbitrators to decide? This presentation will focus on the jurisdictional issues that these tribunals have faced in accessing the interface between EU law and other international obligations to which a member state may be bound.