CYIL vol. 12 (2021)

CYIL 12 (2021) THE KOMSTROY JUDGMENT AND ITS POSSIBLE IMPLICATIONS The tribunal noted that the declarations do not have interpretative meaning, only explain legal consequences. The tribunal declined the argument on EU Treaty as subsequent treaties replacing BIT, and declined the Termination Treaty as not retrospective and not in effect yet 33 . Regarding the potential Komstroy judgment implementation, it is too early to predict how will the Komstroy decision be implemented. From the experience with the Achmea judgment implementation, it is prudent to presume that the arbitration tribunals will show reluctance to decline jurisdiction of intra EU ECT cases based on the Komstroy judgment. Judging from blogs and law firm analyses, the reaction of the investment arbitration industry is the same as towards the Achmea judgment, perhaps with less surprise. This may give a hint towards the reaction by the arbitration tribunals 34 . However, there are several differences to the Achmea judgment and to what extent these will affect implementation is to be seen: – Unlike the Achmea judgment, the Komstroy judgment stated the inapplicability not in the operative part of the judgment, but rather in the “ obiter dicta ” part. – in case of the ECT, EU and Euratom are contracting parties, too. Since from EU law point of view the ECT is a mixed agreement, the implementation will require coordinated action. – Apart from the EU, Euratom and 26Member States 35 , there are together 53 contracting parties and signatories to the ECT. The potential amendment requires unanimity. – This time the judgment explicitly says arbitration of the ECT is inapplicable intra EU, the ECT tribunals may interpret and apply EU law and EU law is part of applicable law under ECT. Under Article 38 of ICJ statute judicial decisions are sources of international law. However, considering the previous experience with acceptance of the Achmea judgment, it is unlikely that the judgment itself will suffice for the tribunals to waive jurisdiction. 3. Potential spill over effect and comparison with the Opinion 1/17 Since the ECT is a multilateral international treaty and the preliminary questions were related to its application outside the EU, it is worth analysing whether the findings in para 66 will not affect its application on disputes between the EU Member States and investors from third Contracting Party and vice versa. Additionally, it is important to take a closer look as to 33 Vladislav Djanic: Analysis: Tribunal majority in Muszynianka v. Slovakia applied proportionality analysis to find that Slovakia’s constitutional amendment on water resources did not breach the Poland-Slovakia BIT; All three arbitrators found fault with certain administrative delays, but damages claim foundered due to lack of causation, available at https://www.iareporter.com/articles/analysis-tribunal-majority-in-muszynianka-v-slovakia-applied- proportionality-analysis-to-find-that-slovakias-constitutional-amendment-on-water-resources-did-not-breach- the-poland-slovakia-b/. 34 See for example: Stoyanov, M., Raimanova, L., Krestin, M.: Intra-EU disputes cannot be arbitrated under the Energy Charter Treaty, says the Court of Justice of the European Union, available at https://www.allenovery.com/en-gb/ global/news-and-insights/publications/intra-eu-disputes-cannot-be-arbitrated-under-the-energy-charter-treaty- says-the-court-of-justice-of-the-european-union. Sullivan, J., Knoebel, C., Collins, S., Tyrrell, T.: Intra-EU Arbitration under the ECT is incompatible with EU Law according to the CJEU in Republic of Moldova v Komstroy https://www.gibsondunn. com/intra-eu-arbitration-under-the-ect-is-incompatible-with-eu-law-according-to-the-cjeu-in-republic-of- moldova-v-komstroy/. Again, the author does not concur with the arguments stated in the above articles. 35 Italy has withdrawn from the ECT in 2015. Available at https://www.energycharter.org/who-we-are/members- observers/countries/italy/.

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