Investment Arbitration and the Conceptual Limits of EU State Aid Law

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.