Diritto dell’Unione europea e arbitrato sugli investimenti: recenti sviluppi alla luce della sentenza Komstroy

In September 2021, the Court of Justice of the European Union (CJEU) published its judgement in Republic of Moldova v. Komstroy which concerned the application of the Energy Charter Treaty (ECT) in the intra-EU investment disputes, arguing for the incompatibility of intra-EU investment arbitration based on the ECT. This decision follows the path already taken with the 2018 Achmea judgment, where the CJEU had held that arbitration provisions found in BITs between two EU member states are incompatible with EU law. Furthermore, in October 2021, the CJEU published its decision in Poland v. PL Holdings Sarl, affirming that even ad hoc arbitration agreements between EU investors and EU members states can be invalid under EU law. Therefore, the judgment in Komstroy represents another expression of a “closed door” approach toward investment arbitration by the European institutions and an attempt to reform investor-State dispute settlement within the EU. This decision appears problematic not only from some legal aspects which emerge from the analisys of the Court, but also for its possible concrete implications on investors operating in the energy sector. The author concludes suggesting the introduction of new mechanisms in order to overcome the conflict between EU law and investment arbitration law and to apply both regimes in armony for a better safeguard of the investor.