CYIL vol. 12 (2021)

CYIL 12 (2021) THE KOMSTROY JUDGMENT AND ITS POSSIBLE IMPLICATIONS to fossil fuels. The public opinion prefers withdrawal from the ECT in order to meet the commitments for the fight against climate change, inter alia from the Paris Agreement. However, it is a known fact that (i) BITs likewise protect fossil fuels and (ii) the majority of disputes under the ECT concern renewables 51 . Moreover, withdrawal triggers a sunset clause of 20 years (Article 47 ECT). Hence it is not clear how withdrawal from the ECT (which is itself not an easy task to manage) would resolve the issues at stake. Whether the inapplicability of the intra EU ECT arbitration will be resolved by the implementation of the Komstroy judgment or via withdrawal from the ECT, it is important to know what kind of regulation can the EU cross-border investors expect in the future. Such investment protection instruments are foreseen both by the declarations, the plurilateral termination treaty as well as the public statements of the European Commission 52 . The European Commission has started the initiative “ Cross-border investment within the EU – clarifying and supplementing EU rules ”. The aim of the initiative was to optimise the investment climate in the EU via (i) clarifying exiting rules, (ii) introducing new measures and (iii) enforcement improvement. The European Commission in 2020 in this regard published the Inception Impact assessment on Investment protection and facilitation framework and performed the Public Consultation 53 . The reactions of the public consultations were published and were not surprising: business associations asked for more protection and better enforcement, on the other hand, NGOs have rejected new instruments. Proposal for regulation should come by the end of 2021. The proposal shall take into consideration the right to regulate the Member States, civil society positions as well as investors’ concerns. As to the considered measures, the European Commission has mentioned the following tools: 54 – Single digital gateway (centralisation of information on investment protection rules) – (upgraded) Solvit-invest – (i) amicable dispute settlement (ii) contact points for reporting of issues of general concern – European mechanism dealing with individual cases at EU level via: (i) mediation and (ii) issuance of non-binding legal opinions including recommendations on remedies – Investment Forum (involving the European Commission, Member States, investors and civil society) – regular discussions on the improvement of investment protection Concluding remarks The Komstroy judgment is just one of several cases before the CJ EU dealing with the intra EU application of the ECT. The cases AVIS 1/20 and Athena Investments and other v Italy before CJ EU are still pending. Moreover, the case PL Holding v Poland may affect commercial arbitration in the EU. How exactly the Komstroy judgment will be implemented is to be seen. Nevertheless, from the reaction of the investment arbitration industry, it seems 51 Statistics are available at https://www.energychartertreaty.org/cases/statistics/. 52 Investment protection and facilitation framework is part of the Capital market Union Action plan 2020. Available at https://ec.europa.eu/info/business-economy-euro/growth-and-investment/capital-markets-union/ capital-markets-union-2020-action-plan_en. 53 Cross-border investment within the EU – clarifying and supplementing EU rules. Available at https://ec.europa. eu/info/law/better-regulation/have-your-say/initiatives/12403-Cross-border-investment-within-the-EU- clarifying-and-supplementing-EU-rules_en. 54 EuroCommerce Policy Talk on ‘Finance and investment: driving green recovery and investment’. Available at https://ec.europa.eu/commission/commissioners/2019-2024/mcguinness/announcements/eurocommerce- policy-talk-finance-and-investment-driving-green-recovery-and-investment_en.

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