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Energy Charter Treaty investment arbitration: jurisdictional gateways, investor/investment definitions, forum selection, denial of benefits, intra‑EU disputes post‑Achmea/Komstroy, enforcement, and 2024 Modernised ECT reforms and withdrawals
PRACTICE NOTES
Energy Charter Treaty investment arbitration: jurisdictional gateways, investor/investment definitions, forum selection, denial of benefits, intra‑EU disputes post‑Achmea/Komstroy, enforcement, and 2024 Modernised ECT reforms and withdrawals
This Practice Note addresses investment treaty arbitration under the Energy Charter Treaty (‘ECT’) This Practice Note surveys investment treaty arbitration under the Energy Charter Treaty (‘ECT’). It outlines, in summary, the ECT’s background, categories of protected investors and qualifying investments, and principal jurisdictional obstacles, such as fulfilling the obligation to seek amicable settlement, limits arising from forum selection, and use of the ECT’s denial of benefits provision. It also examines, in detail, whether ECT tribunals may hear claims by investors from one EU Member State against another (intra‑EU disputes) under the ECT, a question that has been significant in ECT case law. The Note has been revised to capture pertinent amendments to the ECT adopted by the Energy Charter Conference in December 2024 (the ‘Modernised ECT’). The Modernised ECT applies provisionally to Contracting Parties from 3 September 2025, unless a
Arbitration
German and EU responses to Russian Article 248 RAPC anti-arbitration injunctions: injunctive, declaratory and damages remedies to safeguard arbitration agreements
PRACTICE NOTES
German and EU responses to Russian Article 248 RAPC anti-arbitration injunctions: injunctive, declaratory and damages remedies to safeguard arbitration agreements
This Practice Note explores the growing resort to anti-arbitration injunctions by Russian entities under Article 248.1 of the Russian Arbitration Procedure Code (RAPC), which threatens the enforceability of arbitration agreements with EU-domiciled parties. It sets out how the EU and German legal orders provide effective countermeasures. The EU sanctions framework bars recognition of such injunctions and enables claims for damages, while German law supplies powerful remedies, including injunctive relief, declaratory relief, and recovery of legal costs. Recent German court decisions bolster arbitration rights, showing EU entities can protect their interests without traditional anti-suit injunctions. Introduction and Background Increased use of Anti-Arbitration Injunctions by Russian entities based on the Russian Arbitration Procedure Code Recently, Russian entities have increasingly asked local courts to claim exclusive jurisdiction over disputes with EU-domiciled parties, often seeking anti-arbitration injunctions under Article 248.1 RAPC despite valid arbitration agreements. This trend has
Arbitration
Investment protection standards under the Energy Charter Treaty: FET, expropriation, unreasonable and discriminatory measures, umbrella clause, with case law, Modernised ECT reforms and the right to regulate
PRACTICE NOTES
Investment protection standards under the Energy Charter Treaty: FET, expropriation, unreasonable and discriminatory measures, umbrella clause, with case law, Modernised ECT reforms and the right to regulate
This Practice Note focuses on the substantive protections afforded by the Energy Charter Treaty (ECT). It does not address who qualifies as an investor or investment, denial of benefits, or the ECT’s dispute settlement procedures and architecture (including arbitration). For further information on those topics, see Practice Note: Investment treaty arbitration under the Energy Charter Treaty. The expressions investor, investment and Contracting Party are used here as defined in that Practice Note. Part III of the ECT sets out a suite of provisions conferring a robust level of protection on foreign investments made within the territories of host states that are Contracting Parties to the ECT. Among the most significant clauses in Part III are Articles 10 and 13. In December 2024, the Energy Charter Conference adopted a ‘Modernised ECT’, which adjusts the substantive standards and tightens the scope of
Arbitration
Recognition and enforcement of ICSID awards in Germany: procedure, competent courts, Achmea/Komstroy implications, ZPO s 1032(2) applications, injunctions, costs and state immunity
PRACTICE NOTES
Recognition and enforcement of ICSID awards in Germany: procedure, competent courts, Achmea/Komstroy implications, ZPO s 1032(2) applications, injunctions, costs and state immunity
In Germany, the framework for recognising and enforcing awards of the International Centre for Settlement of Investment Disputes is set by Chapter IV, section 6 of the ICSID Convention of 18 March 1965 (articles 53–55), together with the German statute implementing that treaty, the Investitionsstreitbeilegungsgesetz (InvStreitBeilG). The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is inapplicable. Under InvStreitBeilG, article 2(1), an ICSID award may only be enforced after a German court has confirmed its enforceability. So far, there are no reported German court rulings addressing recognition and enforcement of ICSID awards. German law differentiates between the stage of declaring an award enforceable (“Recognition”) and the subsequent stage of carrying out enforcement (“Enforcement”). Recognition of ICSID awards Article 54(1) of the ICSID Convention provides that each Contracting State shall recognise an award rendered under the Convention as binding and shall
Arbitration
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