Deyan Alexandrov Draguiev^[1]

 

The article provides analysis of the status of investment dispute resolution after the seminal judgment of the Court of Justice of EU under the Achmea case, C-284/16, whereby the Court ruled that EU law precludes investor-State arbitration.

The article studies the background of investment arbitration along the conflict between EU Member States and European Commission, and international investors, with regard of application of EU law in such cases, which is exemplified by the Micula case at ICSID whereby the legitimate expectations of investors were honoured by an arbitral tribunal, while the European Commission sought to prevent this as state aid contrary to EU law.

The article further outlines the main arguments of the Advocate General and the Court, including the points of conflict between these two statements, more specifically on the divergent views whether there is any possibility to control the compliance of arbitral awards with EU law by the way of preliminary references to the Court of Justice of the EU.

The article provides critique of the reasoning of the Court from the standpoint of relevant international treaties such as the Vienna Convention on the Law of Treaties or the New York Convention, as the Court did not consider the application of the rules of interpretation, validity and termination of international treaties in the course of its analysis of bilateral investment treaties.

The article contains an overview of the subsequent developments, including rulings of arbitral tribunals and political acts of EU Member States^[2]. It studies a number of interim awards by arbitral tribunals considering that Achmea has a very limited scope of application and/or that multilateral treaties such as the Energy Charter Treaty override application of TFEU as providing specific legal regime.

 

[1] Attorney-at-law at international law firm CMS Cameron McKenna Nabarro Olswang LLP. Graduated from Sofia University and University of Manchester, UK. Member of International Council for Commercial Arbitration, Advisory panel on publications. Assistant Editor for Europe of Kluwer Arbitration Blog. Member of The Honourable Society of the Inner Temple, London, UK. Author of numerous publications in the areas of commercial law, conflict of laws, international arbitration.

[2] Judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158.