Author: Tilbe Birengel
Introduction
In the aftermath of the Achmea decision, controversies on intra-EU arbitrations continue. Most recently, the Paris Court of Appeal has annulled two arbitral awards rendered against Poland. Meanwhile, the Higher Regional Court of Berlin has refused to declare that an Irish investor’s ICSID claim against Germany is inadmissible.
The Background
In the Achmea dated 06.03.2018, the Court of Justice of the European Union (“CJEU”) ruled on the incompatibility of intra-EU arbitrations with European Union (“EU”) law. According to the CJEU, the Netherlands-Slovakia bilateral investment treaty was contrary to the primacy and uniform application of EU law. Following this decision, the jurisdiction of arbitral tribunals dealing with intra-EU disputes came to a halt.
A number of arbitral tribunals such as Vattenfall AB and others, UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale and Masdar Solar & Wind Cooperatief refused to apply the CJEU’s reasoning in Achmea and upheld their jurisdiction. Their main justification for doing so was the non-applicability of the Achmea judgment to multilateral treaties such as the Energy Charter Treaty (“ECT”). However, the Komstroy ruling of the CJEU followed the reasoning of the Achmea to invalidate referrals to arbitration for investment disputes between member states governed by ECT.
