Summary

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Case Report (free download)

Case Report by Aleksander Kalisz, Editor Ignacio Torterola

Summary

The Claimants invested in Ombrina Mare oil and gas field located off the Italian coast in the Adriatic Sea. The dispute arose out of the alleged failure of Italy to fulfil its legislative and regulatory commitments concerning the investment. The Respondent raised an objection that the Energy Charter Treaty ("ECT") and ICSID Convention could not provide jurisdiction between nationals of one EU Member State and another EU Member State. The Tribunal based its decision on three authorities. Firstly, the Achmea Judgment was quoted as prohibiting intra-EU bilateral investment treaties ("BIT"). Secondly, the Declaration of 22 EU Member States (the "Declaration") to terminate BITs between them. Finally, the Vattenfall case which concerned objections to intra-EU arbitration brought pursuant to the ECT. The Tribunal rejected the Objection to Jurisdiction establishing that the Achmea judgment was to be confined to the specific BIT in that case, and that the Declaration did not create a binding rule of law. The ECT was deemed to be different from intra-EU BITs, in particular because the EU itself and the EU Member States are separate Contracting Parties.

Main issues

Intra-EU BITs; objection to jurisdiction arising from intra-EU BITs; separate legal personality of EU itself and EU Member States.

Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd., and Rockhopper Exploration Plc v Republic of Italy (ICSID Case No. ARB/17/14) - Decision on the Intra-EU Jurisdictional Objection - 26 June 2019

Case report provided by International Arbitration Case Law (IACL)

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