The CJEU’s Case Law on Intra-EU Investment Arbitration and the Importance of the Place of Arbitration

Abstract

ACHMEA AND ITS IMMEDIATE CONSEQUENCES 

The landmark ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v. Achmea has been at the core of the debate on the relationships between European Union (EU) law and investor-State arbitration for almost five years. The ruling was followed by several other decisions of the CJEU—examined in the following paragraphs—which confirmed its content and expanded its scope.
Departing from Advocate General Wathelet’s Opinion, the March 6, 2018 judgment held that the investor-State dispute settlement provision contained in Article 8 of the Bilateral Investment Treaty (BIT) between the Netherlands and the Slovak Republic is incompatible with fundamental principles of EU law, such as those enshrined in Articles 267 and 344 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU empowers—or, in the case of last instance courts, requires—the courts of EU Member States to refer matters pertaining to the interpretation of the EU Treaties or to the validity and interpretation of acts of the EU institutions to the CJEU for a preliminary ruling. Article 344 TFEU prevents Member States from submitting disputes concerning the interpretation or application of the EU Treaties to any other settlement method.