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Sunset Clauses in International Law and their Consequences for eu lawparticular bodies obligated to proceed under those norms.’IPOL STU(2022)703592 EN particular bodies obligated to proceed under those norms.’
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5.3.2.
CJEU and the
Komstroy
Decision
For a while, the position of the CJEU on the relationship between EU Treaties and the ECT was not
articulated. In fact, a number of initiatives to trigger a preliminary ruling from the CJEU on the
compatibility of Intra-EU investment arbitrations according to Article 26 of the ECT with EU law were
unsuccessful.
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Eventually, CJEU addressed this issue in the ruling of the
Republic of Moldova v
Komstroy
case
.
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The question before the Court was whether the definition of ‘investment’ according
to Article 1(6) of the ECT entails any economic contribution from the investor in the host State.
Interestingly, the dispute concerned investments in a non-EU Member State, namely Moldova.
But CJEU in an obiter dictum also clarified on whether Article 26 of the ECT, which provides for
arbitration, is compatible with EU law insofar as arbitration resolves disputes between EU based
investors and EU Member States. In particular, the Court ruled that ‘Article 26(2)(c) ECT must be
interpreted as not being applicable to disputes between a Member State and an investor of another
Member State concerning an investment made by the latter in the first Member State.’
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Such an approach is in line with the
Achmea
decision in relation to intra-EU investment arbitrations
based on BITs. However,
the disengagement of the EU Member States from the ECT is subject to a
different degree of complexity
. While in relation to intra-EU BITs, EU Member States could mutually
terminate the bilateral treaties and at the same time terminate the sunset clauses; as the ECT is a
multilateral treaty that involves EU Member States with third countries.
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Suffice to mention here, that
termination of the ECT requires the consensus from every Party, while the interests between EU
Member States and third countries might diverge on this matter.
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On the other hand, it remains to be seen how investment tribunals would treat the judgment of the
CJEU on the inapplicability of Article 26 of the ECT at intra-EU level. However,
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