ACHIEVING A VALID APPLICATION OF EU LAW IN INTRA- EU ENERGY CHARTER TREATY DISPUTES: A MATTER OF FUNCTIONS.

Abstract

The Energy Charter Treaty (ECT) was extensively negotiated and signed by the European Union (EU). However, there are clear indications that legal and policy changes in the EU are gradually challenging the validity of the ECT within the EU.

There are divergent opinions about the ECT status in the EU. One school of thought suggests that ECT tribunals can validly resolve cross-border energy disputes within the EU. Another school argues that ECT tribunals can no longer validly resolve ‘intra-EU disputes’, as arbitrators are unprepared and unsuited to apply EU Law in conformity with the EU legal order.

To address this legal debate, the thesis questions whether the Treaty of Functioning of the EU (TFEU) has displaced the ECT. Secondly, the thesis evaluates how intra-EU arbitral tribunals currently apply EU Law and questions if ECT tribunals can resolve intra-EU energy disputes while respecting the EU legal order. To do so, the thesis studies the EU legal influence on the ECT and conducts a cross-treaty analysis between TFEU and ECT, through scholarly writing and jurisprudential analysis. The thesis then examines how intra-EU investment arbitrators have approached the tension between TFEU and intra-EU investment agreements and evaluates the treatment given to EU Law in this context.

The thesis finds the ECT and TFEU are not in conflict, but in a relationship of tension. It also finds that arbitrators have attempted to understand the nature of EU Law without fully appreciating its impact on the arbitration process. Based on two modern legal theorists, Raz and Ehrenberg, the thesis advocates that EU Law should be approached by the way it functions. This thesis claims that EU Law can perform an informative function, which could enable the TFEU to maintain an influential role in the intra-EU ECT decision-making process, and therefore, achieving a valid application of EU Law in intra-EU ECT disputes