Arbitration Links - Linklaters
  • Author: Dr. Rupert Bellinghausen

Advocate General Wathelet endorses intra-EU BITs

27 September 2017 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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In a much anticipated opinion in Slovak Republic v Achmea BV (Case C-284/16), Advocate General (“AG”) Wathelet has fostered investor-state arbitration under bilateral investment treaties (“BITs”) between EU Member States (“intra-EU BITs”) by concluding that the arbitration clause in Article 8 of the 1991 Netherlands-Slovakia BIT is compatible with EU law, and that arbitral tribunals established thereunder may refer issues of EU law to the Court of Justice of the European Union (“CJEU”) for preliminary rulings.

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Escalation Clauses: no longer a tripping hazard for arbitrations with seat in Germany?

01 December 2016 Julia Grothaus; Dr. Rupert Bellinghausen, Europe; Germany

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Escalation clauses need careful drafting to be enforceable and commercially useful. There is uncertainty as to the consequences of the parties’ non-compliance with escalation clauses providing for ‘final’ dispute resolution by means of arbitration. Will it affect the jurisdiction of the arbitral tribunal or the merits of the claim and can an arbitral award even be set aside? In two recent decisions, the German Federal Court of Justice (Bundesgerichtshof) clarified that, in arbitral proceedings seated in Germany, an arbitral tribunal is entitled to assume jurisdiction irrespective of whether the parties complied with the escalation clause.

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