Revue - Les Cahiers de l'Arbitrage N°1-2023 - 78

ARTICLES - DEBATES
The tribunal took the uncontested view that the law applicable to disputes
arising under the ECT is international law. It further found that, for these purposes,
international law embraced both the ECT (and international investment law
generally) and the European Union law - the latter on the ground that it itself is
the product of a treaty. 73
Read carefully, the award offers two plausible reasons why, were EU law and
the ECT to be in unavoidable conflict, the former should prevail. First, the tribunal
interpreted the ECT as not only acknowledging the status of the EU as a Regional
Economic Integration Organization (REIO), but also as enabling the EU, by virtue
of that status, to take decisions that would be valid and binding on EU Member
States as parties to the ECT, despite their contradiction with the ECT. 74
The ECT
defines an REIO as follows:
A " Regional Economic Integration Organization " means an organization
constituted by states to which they have transferred competence over certain
matters a number of which are governed by this Treaty, including the authority
to take decisions binding on them in respect of those matters. 75
Thus, " the ECT does not protect the Claimant, as against the Respondent, from the
enforcement by the Respondent of a binding decision of the European Commission
under EU law. " 76
The tribunal further explained:
[I]nvestors can have had no legitimate expectations in regard to the consequences
of the implementation by an EU Member State of any such decision by the
European Commission. 77
The tribunal buttressed its position by a less convincing reference to Article
351 of the TFEU, which provides that " [t]he rights and obligations arising from
agreements concluded before 1 January 1958 or, for acceding States, before the
date of their accession, between one or more Member States on the one hand, and
one or more third countries on the other, shall not be affected by the provisions
of [this] Treat[y]. " 78
From this provision, the tribunal drew a negative inference,
namely, that if, notwithstanding EU law, Member States continue to be bound visà-vis
third countries by treaties entered into before their accession to the EU, then
a contrario they are not bound vis-à-vis other Member States by treaties entered
into before their accession to the EU:
Article 307 deals only with relations between EU Members and Non-EU
Members that survive the entry of the EU Member into the European Union;
and it does not address relations between EU Member States. The Tribunal
concludes that Article 307 EC, as a " survival clause " , does not apply to the
relations between the two EU Member States in this case, Belgium as the homestate
of the Claimant and the Respondent, as the host-state of the Claimant's
alleged investment.
...
73. Id. ¶¶ 4.120-4.123, 4.126.
74. Id. ¶ 4.168.
75. ECT, supra note 18, art. 1(3); Id. ¶ 4.142.
76. Electrabel, supra note 71, ¶ 4.169.
77. Id. ¶ 4.142.
78. TFEU, supra note 8, art. 351.
76
The Paris Journal of International Arbitration 2023‑1
Revue - Les Cahiers de l'Arbitrage N°1-2023

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