Achmea: The End of Investment Arbitration as We Know It?

Abstract

The authors focus on the impact of the Achmea judgment on the current system of investment treaty arbitration. Particularly, the authors look at the impact on arbitration clauses in the intra-EU BITs and the ECT. The authors also consider the possible impact of the decision on investment arbitration clauses in investment contracts with the EU Member States, the future intra-EU investment court system, the EU Member States’ bits with third countries, the CETA investment court system and the multilateral investment court. Is the Achmea judgment the end of investment arbitration as we know it? The authors conclude that Achmea marks the end of one chapter in the history of investment treaty arbitration, specifically that of investment treaty arbitration based on intra-EU BITs. The authors argue that Achmea also marks the beginning of a new chapter in investment treaty arbitration. According to them, Achmea is an additional factor in the current legitimacy crisis of investment treaty arbitration, which forces both States and the arbitration community to look for new innovative solutions to replace or at least reform the current system.