The Impact of EU Law on ISDS, Intra-EU BITs and the ECT

The following sections will review the impact of EU law on ISDS, intra-EU BITs and the Energy Charter Treaty (ECT) by discussing the most important developments of the past year.

This analysis starts with the situation post-Achmea, which culminated in the Termination Agreement, which is now fully in force for all 23 Member States that have ratified it.

Subsequently, we will examine the recent developments regarding the ECT, in particular following the Komstroy judgment of the CJEU and the conclusion of the ECT “modernisation” process, which has resulted in the de facto disconnection of the EU and its Member States from the ECT.

Finally, we will focus on the external dimension of the EU’s efforts to modernise the ISDS by reviewing the state of play regarding the Comprehensive Economic and Trade Agreement (CETA) and the other EU investment agreements and, on a global level, within the United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS reforms.”

Source: Tafadzwa Pasipanodya & Manuel Tomas, Foley Hoag LLP (Contributing Editors). Investor-State Arbitration 2023: Practical cross-border insights into investor-state arbitration law Fifth Edition. EFILA.