Sunset Clauses in International Law and their Consequences for eu law
Yüklə 0,84 Mb. Pdf görüntüsü
|
|
228 Energy Charter Treaty 2080 UNTS 100. ECT 1994, Article 16.. 229 See Eskosol SPA in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, Decision on Jurisdiction, 7 May 2019 [71]. Sunset Clauses in International Law and their Consequences for EU Law PE 703.592 53 6. CONCLUSIONS AND POLICY RECOMMENDATIONS 6.1. Remaining in the ECT and raising procedural and substantive objections before investment tribunals The ECT entered into force on April 1998, and just three years later, in 2001, the first case before the arbitral tribunals was registered. Up until January 2021, a total of 135 cases have been recorded 230 making the ECT a very useful legal instrument for investors to challenge governmental policies before arbitration- and making it the ‘most frequently invoked’. 231 According to the available data, the claimant (investor) in most of the cases, based on either an award or a settlement, was compensated, 232 making the ECT an effective mechanism of protection and a substantive limit on governmental policies in the energy sector. States have the option to remain in the ECT, and they can change their regulatory framework to comply with the goals of the Paris Agreement. As it was mentioned above, it is probable that the new regulation policies might affect existing investments from nationals of contracting parties to the ECT and this might lead to disputes before investment tribunals. First, EU Member States and the EU can raise, the procedural objection that the investment tribunals lack jurisdiction based on the Komstroy decision. Such procedural objection is obviously relevant to the intra-EU disputes. In addition, EU Member States and the EU can raise substantive objections, based on their obligations deriving from the Paris Agreement. Such substantive objections can be raised, erga omnes , not only at intra-EU level. 6.1.1. Procedural objections The jurisdiction of the investment tribunals is specifically based on the ECT provisions. The investment tribunals have the kompetenz-kompetenz to decide as to the extent of their own competence on a dispute before them. Article 26 of the ECT is the basis for the jurisdiction of an investment tribunal, which for instance defines that the investment tribunal has jurisdiction for ‘disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former’ only if the dispute concerns an alleged breach of an obligation of the Contracting Party and host state of the investment under Part III of the ECT. 233 Based on the Komstroy judgment, it is possible to argue the offer from EU Member States to arbitrate under the ECT at intra-EU level is not valid, and hence the investment tribunals have no jurisdiction. 230 According to the data of the Energy Charter Secretariat, 135 investment arbitration cases invoked the ECT and it is possible that some cases have been kept secret as the parties in a dispute do not have the obligation to report the case. For more details, see https://www.energychartertreaty.org/cases/list-of-cases/ and for the list of cases up to January 2021 see https://www.energychartertreaty.org/fileadmin/DocumentsMedia/Statistics/Chart_ECT_cases_- _15_January_2021.pdf (last date accessed 31 August 2021). 231 The Energy Charter Treaty (ECT) Remains the Most Frequently Invoked IIA (11 January 2019) available at https://www.energycharter.org/media/news/article/the-energy-charter-treaty-ect-remains-the-most-frequently- invoked-iia (last date accessed 31 August 2021). 232 See https://www.energychartertreaty.org/fileadmin/DocumentsMedia/Statistics/Chart_ECT_cases_- _15_January_2021.pdf (last date accessed 31 August 2021). 233 Energy Charter Treaty 2080 UNTS 100. ECT 1994, Article 26(1). IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs 54 PE 703.592 To evaluate the prospect of success of a procedural objection, suffice to mention two recent decisions from Investment Tribunals, Yüklə 0,84 Mb. Dostları ilə paylaş:
|