Here Comes Doomsday … Or Does It? – Implications of Achmea on Intra-EU Investment Arbitration in Light of Recent Case Law

Abstract

This article follows recent developments in the intra- EU investment arbitration case-law after the publication of the CJEU’s judgment in Slovak Republic v Achmea BV (Achmea judgment) and the subsequent signing of the so-called ‘Achmea declarations’ on 15 and 16 January 2019 and the Agreement for the Termination of Bilateral Investment Treaties Between the EU Member States on 5 May 2020 (Termination Agreement). Although the decisions of investment tribunals analysed in this article show that all tribunals uniformly dismissed the jurisdictional objection of the respondent States based on the cjeu’s conclusions in the Achmea judgment, this article explores the very different reasons adopted by the tribunals when doing so, and the potential challenges ahead, especially once the Termination Agreement enters into ‘full’ force. Based on different approaches taken by the tribunals with regard to the applicability of the Achmea judgment, this article addresses its implications separately for ect arbitrations, icsid arbitrations and bit arbitrations, while drawing attention to the important similarities and differences between the decisions.