The tribunal in Green Power v. Kingdom of Spain declined jurisdiction, finding that the parties had not validly consented to arbitration under the Energy Charter Treaty.

By Dr. Sebastian Seelmann-Eggebert, Shreya Ramesh, and Ram Mashru

A tribunal seated in Sweden has become the first to uphold the “intra-EU objection” in an arbitration under the Energy Charter Treaty (ECT) administered by the Stockholm Chamber of Commerce. The tribunal found that it lacked jurisdiction to hear a dispute between two Danish solar energy investors — Green Power and SCE (the Claimants) — and the Kingdom of Spain on the basis that Spain’s standing offer to arbitrate under Article 26 of the ECT was invalid as a matter of EU law. The unprecedented decision gives effect to a series of seminal judgments of the EU Court of Justice (CJEU) which held that intra-EU investment arbitrations are incompatible with the primacy of EU law and the unity of the EU legal order.