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Berger, J. The End of Intra-EU Investor-State Arbitration. German Yearbook of International Law, 64(1), 285-317.
Berger, Julien "The End of Intra-EU Investor-State Arbitration" German Yearbook of International Law 64.1, 2022, 285-317.
Berger, Julien (2022): The End of Intra-EU Investor-State Arbitration, in: German Yearbook of International Law, vol. 64, iss. 1, 285-317, [online]


The End of Intra-EU Investor-State Arbitration

Berger, Julien

German Yearbook of International Law, Vol. 64 (2021), Iss. 1 : pp. 285–317

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Article Details


Author Details

Dr. Julien Berger, M. Jur. (Oxon), Maître en Droit (Paris 2) is a research assistant at the Chair of Prof. Dr. Mattias Wendel, Maître en Droit (Paris 1) at the Universität Leipzig and a Post-Doctoral Research Fellow in the Berlin Potsdam Research Group ‘International Rule of Law – Rise or Decline?’.


Western Europe can be considered the birthplace of the current international investment protection regime. It was originally developed to protect Western European investors and economic interests in non-EU countries. Since the 1990s, however, international investment law and its dispute settlement mechanism of investor-State arbitration have increasingly extended to intra-European investor-State relations, eventually bringing it into conflict with the principles of European Union law. Two landmark decisions of the ECJ have now sealed the fate of intra-EU investor-State arbitration based both on bilateral investment treaties as well as the multilateral Energy Charter Treaty. The article traces this development and analyses the ECJ’s Komstroy judgment in which the Court found intra-EU ECT arbitration to be incompatible with EU law. It then discusses the implications of this jurisprudence for the international investment protection regime within the EU before arguing that domestic courts of the EU member States might emerge as a fully-fledged substitute for arbitral tribunals.

Table of Contents

Section Title Page Action Price
Julien Berger\nThe End of Intra-EU Investor-State Arbitration 285
I. Introduction 285
II. International Investment Protection in Europe 287
III. The Komstroy Ruling 291
A. Jurisdiction of the European Court of Justice 293
B. Incompatibility of Article 26 ECT and the EU Treaties 294
1. Arbitral Tribunals’ Application and Interpretation of EU law 295
2. Arbitral Tribunals – Neither Courts Nor Tribunals of EU Member States 296
3. Insufficient Review of Awards to Protect the EU’s Autonomy 296
IV. Effects of the Komstroy Judgment 298
A. Effects on Arbitral Proceedings 299
1. The Green Power Partners Award Rejecting the Tribunal’s Jurisdiction 299
2. Pending and Future Intra-EU Investor-State Arbitration Proceedings 301
B. Effects on the Energy Charter Treaty 304
1. ECT Reform Introducing a Disconnection Clause 305
2. Withdrawal from or Termination of the ECT 306
3. New Treaty 307
C. Effect on Domestic Courts in the EU 311
1. Enforcement and Recognition of Awards 311
2. Domestic Courts as Substitutes for Investor-State Arbitration 315
D. Conclusion and Outlook 317