In a recent opinion (not yet available in English), the Advocate General of the Court of Justice of the European Union (ECJ), General Szpunar, opined that the investor-state arbitration system under the Energy Charter Treaty (ECT) is incompatible with EU law. Despite the fact that the now infamous Achmea judgment does not refer anywhere to the ECT, … Continue reading Finishing the Achmea-job: how the European court gradually suffocates the ECT
The Achmea issue and ECT claims: where do things stand?
By now, the readers of this blog will be familiar with the issues brought about by the ruling of the Court of Justice of the European Union (CJEU) in Slovak Republic v Achmea BV. In essence, that ruling declared unenforceable the arbitration mechanism contained in the bilateral investment treaty (BIT) between The Netherlands and the … Continue reading The Achmea issue and ECT claims: where do things stand?
The aftermath of Achmea: where do we stand?
Further to a request for a preliminary ruling from the German Federal Court of Justice, the Court of Justice of the European Union (CJEU) rendered its decision in Slovak Republic v Achmea BV on 6 March 2018. The CJEU ruled that the arbitration clause included in the bilateral investment treaty (BIT) between the Netherlands and Slovakia … Continue reading The aftermath of Achmea: where do we stand?
Achmea: how far does it reach?
No doubt, the European Court of Justice (ECJ) ruling in Slovak Republic v Achmea BV of earlier this year has caused reasoned concern amongst the international investment arbitration community that its reach may be much wider than intra-EU bi-lateral investment treaties (BITs). The proposition is, and the ruling in Achmea most certainly will extend to BITs concluded between an EU member … Continue reading Achmea: how far does it reach?
In a ruling that sent shockwaves across Europe and beyond, the European Union’s (EU) highest court, the European Court of Justice (ECJ), struck down an arbitration agreement contained within a bilateral investment treaty (BIT) between two EU member states, the Netherlands and Slovakia. Whilst the ramifications of this decision are yet to be fully realised, … Continue reading Achmea: European Court of Justice rules that arbitration agreement in intra-EU bilateral investment treaty violates EU law
On 6 March 2018, the Court of Justice of the European Union (CJEU) rendered its much-awaited decision in Slovak Republic v Achmea BV, in which it held that the arbitration clause contained in Article 8 of the Netherlands-Slovakia bilateral investment treaty (BIT), and those contained in other intra-EU BITs in general, was incompatible with EU … Continue reading The CJEU decision in Slovak Republic v Achmea: what opportunities for Switzerland?
Arbitration: 2022 in review
2022 will be remembered as the year that the world moved from pandemic disruption to geopolitical chaos. While many of us welcomed the return to international travel, in-person hearings, and our offices, the biggest story was undoubtedly Russia’s invasion of Ukraine and the seismic shift that has followed. While the cost of living crisis and … Continue reading Arbitration: 2022 in review
The winter of our discontent
It is not news that Europe has been hit hard by soaring energy prices. Power generators that had been shut down during the COVID-19-related economic downturn could not be ramped up in time to meet the increased demand as lockdowns waned. A prior long, cold winter had already depleted the amount of gas in storage, while … Continue reading The winter of our discontent
The decentralised implementation of the ISDS ban by EU domestic courts
Now that the dust has settled following the Achmea, Komstroy, Micula and PL Holdings judgments of the Court of Justice of the EU (CJEU), in which it banned intra-EU investor-state arbitration disputes (ISDS) based on bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT) within the EU, the wider, decentralised implementation of this ISDS … Continue reading The decentralised implementation of the ISDS ban by EU domestic courts
Lex superior: How EU law trumps investment law
In the recently issued Green Power Partners K/S, SCE Solar Don Benito APS v. Kingdom of Spain award, for the first time ever, an SCC arbitral tribunal established under the Energy Charter Treaty (ECT) declined jurisdiction by accepting the Achmea jurisdictional objection.
