A German court, the OLG Hamm, asks the Court of Justice of the EU whether EU law requires member courts to recognize an injunction against enforcing an intra-EU ICSID award in a third country, and whether enforcing such an award abroad could amount to unlawful state aid justifying injunctions until the Commission rules on state aid.

The referral asks if an EU Member State court may block enforcement of a binding ICSID award in a third country, extending beyond earlier rulings in Achmea and Komstroy.

Spain is contesting a EUR 28 million ICSID award linked to 2012 renewable-energy subsidy cuts under the Energy Charter Treaty, with U.S. enforcement actions ongoing since 2021.

Spain’s attempted injunction is framed as a covert reopening of concluded ICSID proceedings, potentially violating Article 53(1) of the ICSID Convention since the award is inter partes and annulment is the proper channel for challenges.

Spain contends that enforcing intra-EU arbitral awards in third countries undermines EU autonomy and could amount to state aid, invoking Article 108(3) TFEU as a protective measure; the Hamm court questions the reach of German tort and protective-law theories.

Critics argue the Hamm approach could turn German tort law into an instrument of EU state-aid control and jeopardize the international legal order underpinning ICSID and similar regimes.

If the CJEU accepts Hamm’s reasoning, debtor states could block third-country enforcement merely via Commission notification, risking erosion of the protection of international arbitration awards and EU credibility in upholding international law.

The decision turns on Rome II regulation issues, debating whether German tort law or U.S. law applies, and whether the case properly fits Article 4(3) Rome II due to a manifestly closer connection to Germany.

CJEU precedents suggest intra-EU investment arbitration awards cannot be enforced within the EU and that indirect influence on proceedings in another Member State clashes with EU law, raising concern about applying that logic to third-country enforcement.