Solnedgång över Energistadgefördraget - Ändamål som helgar medlen eller urholkning av internationell rätt?

Sammanfattning: Against the backdrop of global climate ambitions, the international treaty known as the Energy Charter Treaty (ECT) has come under increasing scrutiny. In particular, the Investor-State Dispute Settlement (ISDS) mechanism in Article 26 ECT is seen as restricting states' right to legislate and thereby slow-ing down the phasing out of fossil fuels (regulatory chill). ISDS is a common mechanism within cross-border trade and investment agreements (such as BITs, MITs, and FTAs. The compatibility of this mechanism with EU law has long been subject to legal debate, both globally and within the EU. Opinions differ as to when – under what conditions and between which parties – such a mechanism should be considered incompatible with EU law. In recent years, the EU Court of Justice (CJEU) has issued judgments – inter alia Achmea, Opinion 1/17, Komstroy, and PL Holdings – which clarify the delineation from a perspective of EU law. The balancing act of CJEU has divided the legal community, and has not been fully accepted internationally. This thesis has conducted an analysis of the case law pertaining to investment in the CJEU and has arrived at the subsequent two comprehensive conclusions. Firstly, regarding the interpretation of an ISDS mechanisms there exists a conflict of norms between EU law on the one hand and international law on the other hand. The perspective of EU law holds that an ISDS mechanisms should be interpreted in the light of EU law, and in particular in relation to the principle of the autonomy of EU law. The perspective of international law implies that interpretation should generally be made through an international treaty, the Vienna Convention on the Law of Treaties (VCLT). Whether an ISDS mechanism should be considered valid seems to largely depend on which of these methods is applied. Secondly, the polarized approach has given rise to an unpredictable legal situation in intra-EU disputes under the ECT. It has become clear that an investor cannot refer an intra-EU dispute or an arbitral award under the ECT within the European Union. However, the same conclusion cannot be drawn if jurisdiction or enforcement is sought outside the EU. Finally, it is noted that the dichotomy and the antagonistic situation that has emerged between the CJEU and international courts has had adverse consequences. The legal development is problematic, particularly considering the EU as a global actor and the importance of maintaining respect for international law.