Revue - Les Cahiers de l'Arbitrage N°1-2023 - 68

ARTICLES - DEBATES
But other arguments derived not from EU law as such, but rather from certain
general international law norms, as codified in the Vienna Convention on the Law
of Treaties (VCLT). 26
Article 30 of the VCLT, titled " Application of successive treaties
relating to the same subject matter, " states among other things that " [w]hen all the
parties to [an] earlier treaty are parties also to [a] later treaty but the earlier treaty is
not terminated or suspended in operation under article 59, the earlier treaty applies
only to the extent that its provisions are compatible with those of the later treaty. " 27
In the Commission's and respondent States' views, the accession treaties and the
intra-EU BITs were " successive treaties relating to the same subject matter, " within
the meaning of Article 30 and the accession treaties, which were concluded later,
necessarily prevailed over the BITs with which they were incompatible. To that
extent, the BITs were accordingly of no force and effect. Article 59 of the VCLT,
titled " Termination or suspension of the operation of a treaty implied by conclusion
of a later treaty, " was interpreted in much the same way. It provides in part:
A treaty shall be considered as terminated if all the parties to it conclude a
later treaty relating to the same subject matter and: (a) it appears from the
later treaty or is otherwise established that the parties intended that the matter
should be governed by that treaty; or (b) the provisions of the later treaty are
so far incompatible with those of the earlier one that the two treaties are not
capable of being applied at the same time. 28
It should not be overlooked that the position taken by the Commission places
members of intra-EU tribunals in a difficult situation. On the one hand, they are
expected to adjudicate claims properly before them, especially when mandated to
do so by international treaties; that is their international obligation. 29
hand, it is also a tribunal's duty to issue an award that will withstand a challenge
in a set aside or enforcement action, and an award rendered in an intra-EU dispute
risked set aside and annulment in the courts of the EU Member States, 30
On the other
which
are likely to be both the seat of arbitration and the place of eventual enforcement.
Nevertheless, for a great many years, not a single BIT tribunal accepted those
arguments. 31
To a one, they held that the intra-EU BIT in question was valid and
then proceeded to the merits, in many cases imposing on the accession State a
heavy liability. Only recently has a single arbitral tribunal declined jurisdiction
over an intra-EU dispute on the ground that the instrument from which it drew its
authority was an intra-EU BIT, invalid under EU law. 32
26. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT].
27. Id. art. 30(3).
28. Id. art. 59(1).
29. IBA Rules of Ethics for International Arbitrators, Int'l Bar Ass'n (1987) 1 ( " Arbitrators shall
proceed diligently and efficiently to provide the parties with a just and effective resolution of their
disputes " ).
30. Julian Scheu & Pettyo Nikolov, The Setting Aside and Enforcement of Intra-EU Investment
Arbitration Awards After Achmea, 36 Arb. Int'l 253 (2020).
31. Damien Charlotin, Breaking: ECT Tribunal Upholds Spain's Intra-EU Objection and Declines
Jurisdiction over Renewable Energy Claim, Inv. Arb. Rep. (June 22, 2022), https://www.iareporter.
com/articles/breaking-ect-tribunal-upholds-spains-intra-eu-objection-and-declines-jurisdictionover-renewable-energy-claim/
( " The June 16, 2022 award is the first known investment arbitration
decision to uphold the frequently-invoked intra-EU objection. " ) (last visited Mar. 9, 2023).
32. Green Power Partners K/S and SCE Solar don Benito APS v. Kingdom of Spain, SCC Case
No. V (2016/135), Award (June 16, 2022) [hereinafter Green Power].
66
The Paris Journal of International Arbitration 2023‑1

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Revue - Les Cahiers de l'Arbitrage N°1-2023

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