EU Autonomy and International Investment Law: From Conflict to Reconciliation?

The amendments to the EU establishing treaties included in the 2007 Lisbon Treaty have resulted in conflicting norms and jurisdictions, arising from overlaps between international investment treaties and EU law. According to the 2018 Judgment of the Court of Justice of the European Union in the Achmea case, an arbitration clause in an intra-EU bilateral investment treaty is not compatible with EU law because of the autonomy of EU law and its need for uniform interpretation and application. In its 2021 Judgment in the Komstroy case, the Court expanded this approach in relation to investor-host State arbitration based on the 1994 Energy Charter Treaty (ECT), that is, on a multilateral agreement among the European Union, its Member States and a few non-EU Member States. The Court based this decision not only on the autonomy of EU law and its need for uniform interpretation and application, but also on the venue of arbitration in a Member State. Several arbitral tribunals and scholars have criticized this approach. Criticism increased in 2022 when the arbitral tribunal in the Green Power v. Spain case – estabished under the Rules of the Stockholm Chamber of Commerce according to the Energy Charter Treaty – followed the Komstroy decision of the EU Court of Justice. This article addresses the main aspects of this ongoing debate and looks at what other options might be available. The relevant case law has focused on a conflict-based perspective. It is suggested that other perspectives might be considered.