Abstract
This article explores the contents and consequences of the Achmea judgment recently given by the European Court of Justice (6 March 2018, case C-284/16). In its first part, the article analyses the judgment from a European point of view. It notes that Achmea is primarily concerned with the autonomy of the EU legal order in international dispute resolution and only secondarily with investment arbitration. The judgment seamlessly ties in with the Court’s Opinion 2/13 on the Accession of the EU to the European Convention of Human Rights. In its second part, the article assesses the consequences of the judgment for current and future investment dispute resolution. It argues that (i) investment arbitration is over for intra-EU Bilateral Investment Treaties and (ii) most likely also for intra-EU disputes under the Energy Charter Treaty; (iii) the European Commission must be careful not to jeopardise the supremacy of the ECJ in interpreting the EU law when concluding future international dispute resolution agreements; (iv) the same holds true regarding dispute resolution under the UK Withdrawal Agreement when negotiating the Brexit.
Highlights
RESUMO: O presente Artigo explora o conteúdo e as consequências do julgamento Achmea recentemente realizado pela Corte Europeia de Justiça em 06 de março de 2018 (Caso C-284/16)
PALAVRAS-CHAVE: Achmea, autonomia do sistema jurídico da União Europeia; arbitragem em litígios de investimento; Bilateral Investment Treaties (BIT) intra-União Europeia; Tratado de Energia; Sistema da Corte de Investimento, solução de litígios do Brexit
The Achmea judgment does not leave any doubts on the role and the self-understanding of the Court in this respect
Summary
In the (investment) arbitration world, the judgment of the Grand Chamber continues to generate shock waves. Www.redp.uerj.br second layer of economic relations based on international law.[31] intra- EU investors, as a matter of principle, cannot expect to establish themselves in a better legal position than that which their respective home State would obtain in the context of EU law In this respect, investment arbitration cannot and does not change their legal status and protection within the Internal Market. Following Achmea, some authors[35] have raised the question as to whether the judgment applies to intra-EU BITs which do not refer to EU law as the applicable law[36], but only generally to the BIT and international law.[37] here there would literally be no direct conflict, as these BITs carve out any reference to EU law.[38] This formalistic approach does not correspond to the concerns the ECJ expressed in Achmea. Www.redp.uerj.br intra-EU BITs regardless of whether they explicitly refer to EU law or not
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