Eskosol SpA in liquidazione v Italy, Decision on Italy's request for immediate termination and Italy's jurisdictional objection based on inapplicability of the Energy Charter Treaty to intra-EU disputes, ICSID Case No ARB/15/50, IIC 1550 (2019), 7th May 2019, despatched 7th May 2019
Whether by its own terms, the Energy Charter Treaty (‘ECT’) should be interpreted as excluding inter se obligations between European Union (‘EU’) Member States.
Whether, as a result of the progressive development of the EU treaties, and specifically, following the entry into force of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community and the judgment issued by the Court of Justice of the European Union on 6 March 2018 in Achmea v Slovakia, the ECT should be interpreted as excluding international arbitration of disputes pursuant to Article 26 of the ECT, between an EU Member State and an investor of another EU Member State.
Whether, as a result of the Declaration dated 15 January 2019 by 22 Member States of the EU, the ECT should be interpreted as excluding international arbitration of disputes between an EU Member State and an investor of another EU Member State.
Whether and in what respect the EU legal order could be said to take primacy over the ECT as between EU Member States.
Whether a court judgment, without more, could have the effect of retrospectively invalidating consent to arbitration once given.