The CJEU Judgment in Case C-284/16 Achmea: One Decision – Many Perspectives

Authors

  • Bartosz Soloch LL.M. (Bonn), doktorant, Uniwersytet Łódzki, Wydział Prawa i Administracji, referendarz w Departamencie Prawa Międzynarodowego i Europejskiego w PGRP

DOI:

https://doi.org/10.26485/SPE/2019/110/8

Keywords:

international investment agreements; investment arbitration; intra-EU investment; interaction of legal regimes; international law

Abstract

The CJEU judgement in case C-284/16 Achmea is of fundamental importance for the future relationship between EU law and investment agreements concluded between EU Member States. In this judgement, the CJEU declared that the provisions of these agreements, which allow investors to bring their claims directly to investment arbitral tribunals, are contrary to EU law. Consequently, Member States are obliged to terminate such investment agreements concluded between themselves and undertake any actions available not to allow for their continued application. This, however, may take much time. Not only must one finalise the process of terminating these agreements, but the proceedings initiated on the basis thereof should be terminated as well. This means that the investment arbitration proceedings may drag on for many years. This makes it necessary to consider the consequences of the Achmea judgement, not only from the point of view of EU law but, equally, from the standpoints of the investment protection and national arbitration laws as well. As arbitration practice might suggest, the incompatibility of an international agreement with EU law does not automatically have to lead to its inapplicability by investment tribunals. Similarly, the restrictive practice of national courts in relation to arbitration matters could also be viewed as a potential hurdle for providing for the practical effectiveness of EU law. Therefore, both legal certainty and the effectiveness of EU law demand a swift termination of the intra-EU investment agreements along with the “sunset clauses”.

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Published

2019-06-15

How to Cite

Soloch, B. (2019). The CJEU Judgment in Case C-284/16 Achmea: One Decision – Many Perspectives. Studia Prawno-Ekonomiczne, 110, 131–166. https://doi.org/10.26485/SPE/2019/110/8

Issue

Section

ARTICLES - THE LAW