After Komstroy. Resolving the Conflict between the Court of Justice and ICSID Tribunals on the basis of the Lisbon Treaty and the Vienna Convention on the Law of Treaties

The ECJ has confirmed in its "Komstroy" decision that intra-EU arbitration under the ECT is contrary to peremtory EU law and that ensuing awards are ineffective within the EU. The article submits that this incompatibility does not affect intra-EU arbitration under the ECT ab initio, but is due to the Lisbon Treaty (2007) formal acknowledgement of the primacy of EU law in Declaration n.17. In this respect the Lisbon Treaty operates under international law ( the only parameter relevant for ICSID tribunals to resolve the conflict) as an "inter se" agreement under Article 41 of the Vienna Convention on the Law of treaties, derogating to Article 26 ECT between the EU Member States, thus depriving ECT investment tribunals of their jurisdiction since its entry into force in 2009