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Austria’s status as a ‘permanently neutral’ country has changed significantly ever since it joined the European Union back in 1995. More than ever, the country is still maneuvering between solidarity within the EU and participating in its common foreign policy and upholding a long-standing tradition of remaining uninvolved in foreign wars. Yet, Russia’s attack on Ukraine shows that there are certain inconsistencies in this search for striking a balance: While the Austrian government has condemned the invasion, implemented EU sanctions, and allowed the transport of weapons through its territory, it refrained from providing arms or military training to the Ukrainian military. In so doing, it is not always clear whether these actions (or omissions) are justified with legal or political arguments. The present article will try to fill this gap.
The Agreement in Principle of the Modernisation of the Energy Charter Treaty succeeded in adjusting many of the ECT’s provisions to cover developments in international investment law in the 28 years since the ECT’s conclusion, particularly specifying the scope of standards of protection. The modernization has also addressed other global and regional issues such as climate change and the importance of transitioning from fossil fuels to renewable sources of energy, and criticism of arbitral tribunals for intra-EU disputes respectively. Despite these results, criticism of the ECT had not abated but instead led to several EU member states declaring their intention to withdraw and it is questionable whether the Agreement in Principle will be accepted at all considering that investments in fossil fuels will continue to be protected in most state parties.
General exception clauses are increasingly gaining relevance in investment arbitration. Included in investment treaties to strengthen the right to regulate, these mechanisms have received mixed reactions in the literature. While being unacknowledged in arbitral practice for a long time, recent cases illustrate the difficulties in interpreting and applying general exception clauses. This contribution will reflect the role of general exceptions for investment treaties and its perception in the literature. Moreover, it analyzes some of the most pertinent issues in case law, such as its relationship to other defences in arbitral proceedings as well as the question whether successful invocation precludes compensation.