Reform of Investment Dispute Settlement and Developments in EU Investment Law: Is There Any Future for Investment Treaty Arbitration in Europe? Some Comments in the Light of Achmea Decision
9 Pages Posted: 3 Apr 2019
Date Written: September 13, 2018
The contribution aims at commenting on the fate of the intra-EU BITs after the recent judgment of the CJEU C-284/16 (Slovak Republic v. Achmea). The judgment produced a shock among international lawyers and members of the international arbitration community. To its better understanding, the judgment needs to be read in a broader political context. It includes, on one hand, the long-lasting effort of the European Commission to push the Members States to terminating or withdrawing from the existing intra-EU BITs and, on the other hand, the contemporary backlash in the European society against the ISDS as such. This judgment clearly stresses the autonomy of the EU legal order. From the international law perspective of the possible implications of Achmea, however, one should not rush to conclusions. One can expect more successful actions on annulment of arbitral awards in the EU Member States. However, a number of investment arbitrations take place in accordance with ICSID rules (where review and interference by national courts does not apply) or outside the ICSID, but tribunals with a non-EU jurisdiction. It is not clear if the tribunals will respect the Achmea judgment. From the point of view of the law of treaties, it results that neither the CJEU judgment itself, nor the underlying provisions of the TFEU can cause the invalidity or termination of the BIT in question, unless the Member States take steps under the law of treaties to terminate the BIT.
Keywords: Achmea, BITs, Court of Justice of the EU, EU law, international investment arbitration
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