@article{2026:hornkohl:investment,
title = {Investment Arbitration and the Conceptual Limits of EU State Aid Law},
year = {2026},
note = {This article revisits the uneasy junction where investment arbitration
intersects with EU State aid law, examining whether, and in what
circumstances, such arbitral awards and their payment or enforcement
can fall within Article 107(1) TFEU. Using the Commission’s decision
in Antin as its central case study, it focuses on two elements of the
notion of aid that have become particularly salient in this context:
imputability and advantage. It argues that the Commission’s
reasoning is strained on both counts. Treaty accession, incorporation
into national law, and voluntary compliance may involve sufficiently
clear State conduct, but arbitral awards, judicial recognition, and
involuntary enforcement sit far less comfortably within orthodox
imputability analysis. Equally, compensation for loss does not become
an advantage merely because the arbitral route is regarded as
incompatible with EU law. Selectivity, in turn, is shown to suffer
from the same issues stemming from definitional oscillation. The
article also shows that Antin’s remedial logic is vulnerable. By
extending Article 108(3) TFEU towards a general anti-enforcement
mandate, including with respect to third-country proceedings, the
decision exposes a mismatch between the internal logic of EU State aid
law and the external operation of the ICSID enforcement regime,
undermining the very effectiveness the Commission champions.},
journal = {ZEuS Zeitschrift für Europarechtliche Studien},
pages = {274--309},
author = {Hornkohl, Lena and Pelekis, Dionysios},
volume = {29},
number = {2}
}