Summary

Source: icsid.worldbank.org

I. BACKGROUND

1. On 15 July 2025, the European Commission (the "Commission") filed an application pursuant to ICSID Arbitration Rule 37(2) (the "Application"), requesting that the Committee:

"a. grant the Commission leave to intervene in the present proceedings;

b. set a deadline for the Commission to file a written amicus curiae submission;

c. allow the Commission access to the documents filed in the case, to the extent necessary for its intervention in the proceedings;

d. allow the Commission to attend hearings in order to present oral argument and reply to the questions of the ad hoc Committee at those hearings. In that context, the Com- mission recalls that it could also be invited as an expert on EU law, rather than as a non-disputing party."

2. On 24 July 2025, the Committee invited the Parties to submit their observations on the Application by 31 July 2025.

3. On 31 July 2025, the Parties filed their respective observations on the Application ("Applicants' Observations" and "Romania's Observations," respectively).

II. THE APPLICATION

4. The Commission states that it has decided to intervene in intra-European Union ("EU") investment arbitration cases, including the case currently pending before the Committee under the Romania-UK BIT, in which "Romania is seeking from the Committee annulment of an ICSID award". According to the Commission, the award violates EU law because it upheld an arbitration agreement despite EU treaties precluding intra-EU investment arbitration.

5. The Commission maintains that, as "the guardian" of the EU treaties, it is responsible for ensuring the uniform interpretation and proper application of rules relating, inter alia, to investment protection within the EU. It argues that its mandate to ensure Member States' compliance with EU law and to protect the EU's general interests justifies its intervention to prevent conflicts between ICSID arbitration awards and EU law.

6. The Commission argues that its intervention is justified under ICSID Arbitration Rule 37(2), applied mutatis mutandis in annulment proceedings pursuant to Rule 53, for the following reasons:

7. First, the intervention would assist the Committee by bringing a perspective, particular knowledge, or insight different from that of the disputing parties concerning the EU treaties. Citing Article 17 of the Treaty on European Union ("TEU"), the Commission emphasizes its role in ensuring Member States' compliance with EU law as "the guardian of the Treaties." It submits that if the ICSID Convention were interpreted as allowing an arbitral tribunal to confirm its jurisdiction in the present case, this would create a conflict between EU law and the ICSID Convention, requiring Member States to act under Article 351(2) Treaty on the Functioning of the European Union ("TFEU") to resolve it.

The EU, and therefore the Commission, is independent from its Member States, and the Commission's perspective is unique in that it considers only the interests of the EU as a whole.

8. Second, the intervention would address a matter within the scope of the dispute. While noting that it has "no knowledge of the content of the request for annulment or the memorial for annulment," the Commission explains that, based on possible grounds for annulment identified in the contested award -- specifically that the Tribunal manifestly exceeded its powers as it lacked jurisdiction in the present case-- it seeks to make a written submission on two issues:

(i) "Whether or not an Arbitral Tribunal has to apply, in a concrete intra-EU case, the national law of the host State, which comprises EU law, or EU law as international law applicable between the contracting parties of the intra-EU BIT, is irrelevant for the compatibility of intra-EU investment arbitration with the EU Treaties," and

(ii) "Whether or not investment arbitration takes place according to the ICSID Convention or according to other arbitration rules, is irrelevant for the incompatibility between intra-EU investment arbitration and the EU treaties."

9. Third, the Commission has a significant interest in these proceedings. Specifically, the Commission states that "[i]n order to avoid any conflict between arbitration awards and EU law, which would force EU Member States to not comply with those awards and the judiciary of the Member States to refuse recognition and execution of such awards, the Commission has a significant interest in ensuring that your Committee is fully aware of the legal consequences flowing from EU law as interpreted by the CJEU, and considers these in its assessment of the jurisdictional objections."

10. Finally, regarding procedural considerations, the Commission states that its submission could be brief, as it would be limited to supplementing the amicus curiae brief already filed with the Arbitration Tribunal, and the Commission is prepared to submit its amicus curiae brief within a deadline that will not disrupt the proceedings.

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V. ORDER

20. For the reasons stated above, the Committee denies the Application.

On behalf of the Committee,

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Footnotes omitted