Ines Medić – Faculty of Law, University of Split, Domovinskog rata 8, 21000 Split, Croatia
Mia Grgić – Faculty of Law, University of Split, Domovinskog rata 8, 21000 Split, Croatia

 

DOI: https://doi.org/10.31410/LIMEN.2019.111

 

5th International Scientific-Business Conference – LIMEN 2019 – Leadership, Innovation, Management and Economics: Integrated Politics of Research – CONFERENCE PROCEEDINGS, Graz, Austria, December 12, 2019, published by the Association of Economists and Managers of the Balkans, Belgrade; Printed by: SKRIPTA International, Belgrade, ISBN 978-86-80194-26-4, ISSN 2683-6149, DOI: https://doi.org/10.31410/LIMEN.2019

 

Abstract

The history of the European Union’s unease on the anti-arbitration policy is long. It dates back in
2007 and the Lisbon Treaty which transferred competence for concluding treaties from the Member States
(MSs) to the European Union. In 2019 it is hard to find someone in legal circles who doesn’t know about the
famous and controversial Achmea judgment. Court of Justice of the European Union (CJEU) played hard
on this topic, although Advocate General and the national court of MSs had different and thoroughly argumented
opinions. By this judgment, all arbitration clauses in intra-EU BITs have been invalidated. On the
other hand, CJEU didn’t offer an adequate alternative for invalid arbitration clauses, nor answered on the
question of substantive protection, which is provided by intra-EU BITs. More controversially, in Opinion 1/17
Court declared CETA’s provision on dispute settlement valid and EU friendly. The reaction of the MSs almost
validated CJEU’s intervention into, by then, so carefully built mosaic of investment dispute settlements.
Whether it has been given under the pressure of the Commission or at the initiative of MSs, together with
the respective judgment, it was an impulsive move. In this Article, the Authors are going to explain how did
the Achmea judgment disturbed the internal market and why the past system was more investment-friendly.

 

Keywords

Achmea judgment, Investment arbitration, CJEU.

 

 

References

Articles
Ankersmith, L., (2016), The Compatibility of Investment Arbitration in EU Trade Agreements
with the EU Judicial System, Journal for European Environmental and Planning Law,
April 2016, pp. 46-63.
Bakos, A.C., 2019, Schrodinger’s Investment: the EU’s General Court Considered that the
Compensation Ordered by the Micula Tribunal is not a form of State Aid (Although it
Might as Well Have Been, retrieved from: https://efilablog.org/2019/06/26/schrodingersinvestment-
the-eus-general-court-considers-that-the-compensation-ordered-by-the-micula-
tribunal-is-not-a-form-of-state-aid-although-it-might-as-well-have-been/ , retrieved: 15
January 2020.
Beham, M., Prantl, D., 2020, January 7, Intra-EU Investment Reform: What Options for the
Energy Charter Treaty?, Kluwer Arbitration Blog, retrieved from: http://arbitrationblog.
kluwerarbitration.com/2020/01/07/intra-eu-investment-reform-what-options-for-the-energy-
charter-treaty/ , retrieved: 12 January 2020.
Croisant, G., 2019, April 30, Opinion 1/17- The CJEU confirms that CETA’s Investment Court
System is Compatible with EU Law, Kluwer Arbitration Blog, retrieved from: http://arbitrationblog.
kluwerarbitration.com/2019/04/30/opinion-117-the-cjeu-confirms-that-cetasinvestment-
court-system-is-compatible-with-eu-law/?print=print, retrieved: 15 January
2020.
Dimitrov, I., 2019, October 18, Navigating Through Stormy Seas: The UK Supreme Court Hears
the Micula Case, Kluwer Arbitration Blog, retrieved from: http://arbitrationblog.kluwerarbitration.
com/2019/10/18/navigating-through-stormy-seas-the-uk-supreme-court-hearsthe-
micula-case/, retrieved: 14 January 2020.
Dias Simoes, F. (2017). A Guardian and a Friend? The European Commission’s Participation
in Investment Arbitration, Michigan State International Law Review, Vol. 25.2, 2017, pp.
234-303.

Dragiev, D., 2019, January 16, 2018 In Review: The Achmea Decision and Its Reverberations in
the World of Arbitration, Kluwer Arbitration Blog, retrieved from: http://arbitrationblog.
kluwerarbitration.com/2019/01/16/2018-in-review-the-achmea-decision-and-its-reverberations-
in-the-world-of-arbitration/, retrieved: 15 January 2020.
Hirst, P., Yeow, M. (2019). International arbitration: Current trends and what to expect in 2020
and the years ahead, 2020, retrieved from: https://www.lexology.com/library/detail.aspx-
?g=1014006f-0259-435d-819b-0c099a4dd53f, retrieved: 15 January 2020.
Ilie, L., 2018, January 21, What is the Future of Intra-EU BITs?, Kluwer Arbitration Blog, retrieved
from: http://arbitrationblog.kluwerarbitration.com/2018/01/21/future-intra-eu-bits/
, retrieved: 14 January 2020.
Kohegyi, D., Gans, S. K., 2019, January 19, EU Member States issued a joint declaration on
the legal consequences of the Achmea decision, retrieved from: https://www.dlapiper.com/
de/germany/insights/publications/2019/01/legal-consequences-of-the-achmea-decision/,
retrieved: 15 January 2020.
Newing, N., Alexander, L., Meredith, L., 2018, April 28, What Next for Intra-EU Investment
arbitration? Thoughts on the Achmea Decision, Kluwer Arbitration Blog, retrieved from:
http://arbitrationblog.kluwerarbitration.com/2018/04/21/what-next-for-intra-eu-investment-
arbitration-thoughts-on-the-achmea-decision/ , retrieved: 15 January 2020.
Potesta, M. (2009). Bilateral Investment Treaties and the European Union-Recent Developments in
Arbitration Before the ECJ, 8 Law & Practice International Courts & Tribunals, pp. 225-245.
Schaherer, S., 2016, August 10, Can EU Member States Still Negotiate BITs with Third Countries?,
retrieved from: https://www.iisd.org/itn/2016/08/10/can-eu-member-states-still-negotiate-
bits-with-third-countries-stefanie-schacherer/, retrieved: 15 January 2020.
Stoyanov, M., 2019, November, Increased enforcement risk in intra-EU investment treaty arbitration
retrieved from: https://www.allenovery.com/en-gb/global/news-and-insights/legal-
and-regulatory-risks-for-the-finance-sector/europe/increased-enforcement-risk-in-intra-
eu-investment-treaty-arbitration, retrieved: 12 January 2020.
Uzelac, A. (2019). Why Europe should reconsider its anti-arbitration policy in investment
disputes, Access to Justice in Eastern Europe, Issue No. 1(2), pp. 6-30, doi: https://doi.
org/10.33327/AJEE-18-2.1-a000008.
Wyss, W. 2018, Achmea-Earthquake – Time to Consider a Swiss Solution, retrieved from: https://
www.lexology.com/library/detail.aspx?g=475fa99b-9c5c-4800-bc68-c854cd806525 , retrieved:
13 January 2020.
European Union Law
Treaty on the Functioning of the European Union, Official Journal of the EU C 326
Communication to the Council, the European Parliament, the European Economic and Social
Committee and the Committee of Regions-Towards a comprehensive investment policy,
available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX-
:52010DC0343&from=EN, retrieved: 12 January 2020
Declaration of the Representatives of the Governments of the Member States on the Enforcement
of the Judgment of the Court of Justice in Achmea and on Investment Protection
in the European Union , available at: https://www.regeringen.se/48ee19/contentassets/
d759689c0c804a9ea7af6b2de7320128/achmea-declaration.pdf, retrieved: 12 January 2020
Regulation (EU) No 1219/2012 of the European parliament and of the Council of 12 December
2012 establishing transitional arrangements for bilateral investment agreements between
Member States and third countries, Official Journal of the EU L 351/40

Treaties
Comprehensive Economic and Trade Agreement between Canada and EU and its MS available
at: https://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/, retrieved: 13
January 2020
Energy Charter Treaty, 1994
International Convention for Settlement of Investment Disputes, 1965
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United
Nations, 1956
Vienna Convention on the law of the treaties, United Nations, 1969
Case Law
Achmea B.V. v. Slovak Republic, C-284/16
Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta SA v Autoridade Tributária
e Aduaneira, C-377/13
Micula case, Joined Cases T- 624/15, T-694/15 and T-704/15
Opinion 1/09 (European and Community Patent Court)
Opinion 2/13 (Accession to the ECHR)
Achmea B.V. v. Slovak Republic, PCA Case No. 2008-13
Eastern Sugar B.V. (Netherlands) v. Czech Republic, SCC Case No. 088/2004
Eletrcabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Micula v. Romania, ICSID
Case No. ARB/05/20
Gavrilović v. Croatia, ICSID Case No. ARB/12/39
Ioan Micula, Viorel Micula, and others v Romania, ICSID Case No. ARB/05/20
Masdar Solar & Wind Cooperative U.A. v Kingdom of Spain, ICSID Case No. ARB 1/14/1
UP and C.D. Holding Internationale v. Hungary, ICSID Case No.ARB/14/1
Vattenfall v. Germany, ICSID Case No. ARB/12/12
Web
https://www.faegrebd.com/en/insights/publications/2015/7/ecs-infringement-proceedings-
for-intraeu-bits-cause-uncertainty-for-investors, retrieved: 13 January 2020
https://ec.europa.eu/trade/policy/accessing-markets/investment/, retrieved: 14 January 2020
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62016CC0284&-
from=EN, retrieved: 14 January 2020
https://www.trade.ec.europa.eu, retrieved: 15 January 2020
https://ec.europa.eu/trade/policy/accessing-markets/investment/, retrieved: 14 January 2020
https://ec.europa.eu/trade/policy/accessing-markets/investment/, retrieved: 11 January 2020

 

 

 

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