Swiss Supreme Court Rejects CJEU's Komstroy Ruling

EDF v Kingdom of Spain, Swiss Federal Supreme Court, 4A_244/2023 of 3 April 2024

INTRODUCTION

On 3 April 2024, the Swiss Federal Supreme Court (the 'Swiss Supreme Court', 'Supreme Court' or 'Court') handed down a landmark decision confirming the jurisdiction of a Swiss-seated arbitral tribunal over an intra-EU investment dispute under the Energy Charter Treaty ('ECT').

Before the Swiss Supreme Court, Spain had – among other grounds¹ – challenged an award rendered by an ad hoc arbitral tribunal constituted on the basis of Article 26 ECT on the ground that it lacked jurisdiction. Spain argued that, following the CJEU's judgment in Republic of Moldova v Komstroy LLC, ² either the ECT's dispute resolution provisions in Article 26 ECT do not apply to intra-EU disputes or else EU law takes precedence over the ECT.