Tribunals rule that costs should lie where they fall, pointing to novelty of majorities’ reasoning

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Majorities find that the competence discussed in the arbitrations were transferred to the EU, precluding their jurisdiction

Circumstances of ECT’s conclusion confirm majorities’ findings

Discussions during treaty negotiations regarding intra-EU disconnection clause do not imply that no disconnection clause can be read into the treaty

Object and purpose of ECT was to foster east-west energy cooperation, which the majorities find supports their interpretation

Majorities see confirmation of their findings in additional contextual elements

ESF majority rejects dissenter’s analysis

Majorities find that definition of REIO in Article 1(3) ECT is of key relevance and entails that where the contested measures relate to a competence that has been transferred to a REIO, the REIO’s members cannot be held liable for an ECT breach

Majorities find that immediate context of the arbitration clause, definition of “Area”, and provision on voting by REIOs are not particularly relevant

Based on the plain language of Article 26(3)(a) ECT, each contracting member – including EU member states and the EU – gave its unconditional consent to investor-state arbitration

Tribunals decline to rely on CJEU judgments

Tribunals consider that prohibition of intra-EU investor-state arbitration is not part of customary international law

Sapec tribunal and ESF majority find that EU rules are not part of the applicable law

The EU and Spain are both ECT parties, and they each have their own area

Principle of primacy of EU law is not applicable in ECT/ICSID arbitration

Different elements of Article 31 VCLT should be considered as a whole

While numerous prior decisions have rejected the intra-EU objection, the tribunals must examine the issue anew

Tribunals allow European Commission to intervene and rule on additional authorities; ESF tribunals submits questions on intra-EU objection to the parties

In both cases, parties fail to agree on tribunal chair, prompting ballot and rank-and-strike procedures; arbitrator challenge is rejected in Sapec case

Background: Belgian and Danish investors allege that Spain breached the ECT by modifying its incentives regime for PV plants

Tribunal dismisses bifurcation request, finding all three objections intertwined with the merits

TPA’s mandatory bifurcation provision does not apply to jurisdictional objections

Peru raises three jurisdictional objections

Background: Claimant files for second arbitration after first tribunal finds failure to comply with parallel litigation waiver requirement

Test for security for costs is met, as claimant is likely able to post such a security without harming its ability to pursue the claim

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