Resolving Perceived Norm Conflict through Principles of Treaty Interpretation: The January 2019 EU Member States’ Declarations

Abstract

In January 2019, EU Member States issued three declarations concerning the “consequences of Achmea” which stated that all claims under intra- EU BIT S were contrary to the EU legal order, and that tribunals presiding over such claims have no jurisdiction as there is no valid consent to arbitrate. The declaration signed by a majority of EU Member States (“Majority Declaration”) extended this proposition to intra- EU claims under the Energy Charter Treaty. Following this, a number of EU Member States have sought to argue that the Majority Declaration is a subsequent agreement between the States Parties to intra- EU investment treaties—or evidence of a subsequent practice establishing their agreement—that the dispute resolution provisions in those treaties must be interpreted to exclude intra- EU disputes from their scope and thus from the jurisdiction of tribunals constituted thereunder, relying on Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties (“VCLT”). This paper considers: (i) the key cases in which the Majority Declaration has been invoked to contest jurisdiction in, or seek the termination of, intra- EU arbitration proceedings; (ii) the application of Article 31(3)(a) and (b) of the VCLT; and (iii) other fundamental tenets and rules of international law discussed in relation to those cases.