RE: Revenge of the Energy Charter Treaty! - Duane Morris LLP17 Feb 2022 10:21
"At present it appears that arbitral tribunals appointed pursuant to the ECT seem to agree and will for the time being reject any arguments, based upon the Achmea case, regarding their jurisdiction as evidenced by Rockhopper.
While that may give some degree of the comfort to investors, questions remain about the enforceability of the awards. It is no good for an investor taking the time and no doubt significant expense in concluding an arbitration under the ECT only to find that the award will not be enforced. Based upon the position adopted by the ECJ in Achmea and the German Supreme Court in Raiffeisen Bank it seems inevitable that an investor will not be able to enforce the award within a member state of the EU.
However, it remains to be seen how jurisdictions outside of the EU will react, most notably the US. If a tribunal has concluded that it has jurisdiction under a multinational treaty like the ECT and an award is issued, on what basis should jurisdictions outside of the EU concern itself with decisions of the ECJ, like Achmea, when enforcing awards. International treaties such as the ICSID and the New York Convention suggest that decisions of the ECJ should have little baring and the award should be enforced. This remains an open ended issue and only time will tell how jurisdictions outside of the EU will react to the enforcement of awards."