Intra-EU Arbitral Awards vis-à-vis Article 107 TFEU: State Aid Law as a Limit to Compliance

Abstract

The article focuses on the relationship between EU (European Union) state aid law and compliance with intra-EU investment arbitration awards. The first section investigates the problem of compliance with intra-EU awards in general and argues that the doctrine of imputability allows to rule out the existence of illegal state aid. The second section addresses the case of an arbitral award mandating the re-installment of illegal state aid: only under such specific circumstances, compliance with the award constitutes a violation of Article 107 TFEU. The consequences on the regime of circulation of awards are scrutinized: as for non-ICSID awards, the article advocates a restrictive interpretation of Article V(2)(b) of the New York Convention. As for ICSID awards, it is argued that the Commission should refrain from requiring Member States to violate Article 54 of the Washington Convention, in light of the analogies between the case at hand and GATT 1947.

Keywords: international investment law, international arbitration, investment arbitration, EU law, State aid, State aid law, ICSID Convention, New York Convention, Washington Convention, Micula