Arbitration in the EU Energy Sector: Recent Developments and Case Law

Abstract

This contribution focuses on arbitration in the European energy sector and sheds a light on some recent developments and cases. The contribution observes that under the current and evolving EU regulatory framework governing the energy sector different forms of dispute settlement are possible, with specific bodies for dispute settlement being developed in the Member States and certain competences for dispute settlement being allocated to the National Regulatory Authorities. With the focus being on arbitration, this contribution furthermore recognizes the importance of commercial arbitration or Investor State Dispute Settlement (ISDS) in the investments made in the energy sector and recognizes that classical discussions, such as on the balance between investor protection and the Member State's right to regulate are currently crucial: firstly because more and more dispute settlement cases are arising in relation to changes to regulatory frameworks such as support schemes that were designed to attract private investments in the first place, and secondly because many of these disputes in the energy sector occur in an intra-EU setting, in which the EU Commission is increasingly scrutinizing the dispute settlement possibilities. In light of various ongoing developments, the contribution provides some observations in two recent arbitral awards Charanne and Eiser Infrastructure and into a case in front of the European Court of Justice Gazprom OAO v. Lietuvos on the jurisdiction and the recognition and enforcement of arbitration clauses and awards in the EU.