CAN WE CLOSE THE ISDS COFFIN?

Investor-State Dispute Settlement (ISDS) has been the center of controversy for decades and the European Union (EU) is currently at the forefront of this battlefield with various European countries either withdrawing or signifying their intention to withdraw from the Energy Charter Treaty (the ECT). Not a day goes by without a new notice of a new arbitral award being made against an EU Member State despite the Court of Justice of the European Union (CJEU) rulings, a national court rejecting to enforce an arbitral award or investors trying their luck in foreign jurisdictions such as the US. This situation places Member States in a difficult position, especially since arbitral tribunals do not seem to give any consideration to the need for climate change mitigating measures. It seems that the only glimpse of hope might come from national courts which have refused to recognise and enforce intra-EU arbitral awards.