Achmea and its Implications for Investor Dispute Settlement
ZEuS, Jahrgang 21 (2018)
CEVIA Working Paper Series, Issue 3/2018, No. 13
24 Pages Posted: 6 Dec 2018 Last revised: 19 Feb 2019
Date Written: November 27, 2018
Arbitration in disputes between investors and States has been discussed most controversially in recent years, with the discussions culminating in the context of CETA and in the proposed TTIP but also in relation, for example, to cases such as the Moorburg case or the Vattenfall case turning on the German nuclear phase-out. The case of Achmea was far less well known in public but it offered the Court of Justice of the European Union (CJEU) the opportunity to rule on arbitration under a specific type of investment agreements, the so-called ‘intra-EU BITs’. Intra-EU BITs are bilateral investment treaties between EU Member States that foresee, in one way or the other, investment arbitration to be brought by investors from one EU Member State against another EU Member State. These treaties have come under fire in recent years and the European Commission has urged Member States to abolish them. Academics have also debated the viability of intra-EU BITs.
The Court of Justice handed down its judgment on 6 March 2018, causing a shock to the investment lawyers’ community. The exact meaning and effect of the judgment, including its impact on extra-EU BITs, however, has been subject to most diverse interpretations in academic writing.
After a short introduction of the Achmea case, this article presents the background of the various conflict lines between EU law and intra-EU BITs and then discusses the (potential) implications of the judgement for these conflict lines as well as for the various types of investor protection agreements.
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