By judgment of 10 January 2023, the Court of Appeal of Paris (CA Paris) annulled for the second time a US$49m arbitral award rendered in 2013 under the Energy Charter Treaty (ECT) for lack of jurisdiction, finding that a claim for payment under a commercial contract cannot qualify as a protected ‘investment’ in the sense of the ECT. The CA Paris followed the preliminary ruling decision of the Court of Justice of the European Union, which held that the ECT’s distinction between trade and investment had to be given effect and that, consequently, a claim for payment under a contract not associated with the immobilisation of resources abroad cannot constitute an ’investment’ under the ECT. The lasting impact of the case lies in the Court of Justice’s obiter dictum, which extended the Achmea judgment to the ECT and ruled that EU law precludes the application of the ECT’s investor-state arbitration mechanism in intra-EU disputes.
KOROM, V. (2023). Court of Appeal Paris sets aside award agreeing with the Court of Justice that a contractual claim for payment is not a protected ‘investment’ under the ECT (Republic of Moldova v Stileks Scientific LLC). LexisNexis.