Summary

EXPERT DECLARATION OF PROFESSOR PIET EECKHOUT

TABLE OF CONTENTS
I. Introduction and Background
II. Executive Summary
III.Background
A. Relationship Between EU law and Public International Law
B. Mixed Agreements and the ECT
IV. The Achmea Judgment and the ECT
A. Scope of the ECJ's findings in the Achmea Judgment
B. Opinion 1/17 on CETA and the ECT
C. Article 26 of the ECT is Valid as a Matter of EU Law
D. Under International Law, Article 26 ECT Is Valid Regardless Of Whether It Complies With EU Law
E. The Achmea Judgment Did Not Have a Direct Legal Effect on the Parties' Agreement to Arbitrate
F. Conclusion: The Achmea judgment has no effect on the validity of the Parties' arbitration agreement
V. The EC'S Communication and the First Declaration have No Effect on the ECT's Interpretation
VI. Payment of the Award would not Violate EU Law
VII. The Award is Immediately Enforceable

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VII. THE AWARD IS IMMEDIATELY ENFORCEABLE

98. If, notwithstanding the position above, the Award were to constitute unauthorized State Aid, I do not follow at all Spain's position that this would mean the tribunal rendered an "ultra vires Award."133 First, I do not agree with Spain's argument that the Tribunal's jurisdiction was restricted by EU law, for the reasons explained above. Second, even if it were, and the Tribunal had acted "ultra vires," that would not render the Award void. It may mean the Award could be subject to an application for annulment under Article 52(1)(b) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention") (on the basis that the Tribunal had manifestly exceeded its powers). Whether or not that application was valid would, however, be for the determination of an ICSID ad hoc committee constituted under Article 52 of the ICSID Convention. Unless and until such a determination is made by an ICSID ad hoc committee, the Award remains binding on the parties under ICSID Article 53(1).

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Footnotes omitted from this introduction.