Arbitration Links - Linklaters
  • Year: 2018
  • Topic: Public International Law

Post-Achmea: Vattenfall tribunal maintains jurisdiction over intra-EU Energy Charter Treaty claim against Germany

13 September 2018 Kirstin Schwedt, Europe

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In a detailed decision, an ICSID tribunal hearing a dispute between Swedish Vattenfall and Germany over the state’s phase out of nuclear power in the wake of the Fukushima disaster (ICSID Case No. ARB/12/12) has maintained jurisdiction to hear the dispute under the Energy Charter Treaty (“ECT”). The decision follows objections raised by Germany after the Achmea-judgment of the Court of Justice of the European Union (“CJEU”). We have previously reported on implications of Achmea for ECT-claims and the European Commissions’ view of the Achmea-judgment here.

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The changing landscape of intra-EU investment protection: latest communication by the European Commission and other post-Achmea developments

31 July 2018 Kirstin Schwedt; Maximilian Reichert, Europe

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In the wake of the Court of Justice of the European Union’s (“CJEU”) judgment in Achmea, the European Commission recently communicated that “EU investors cannot invoke intra-EU BITs” or the Energy Charter Treaty (“ECT”) for intra-EU investments and advertised alternative remedies available under EU law. Meanwhile, ICSID tribunals have continued to render awards on intra-EU investment disputes and a court in Stockholm is considering a preliminary reference to the CJEU with respect to the ECT (for further background see our previous posts on Achmea here, here and here.) But even five months after Achmea and numerous contributions to the debate on its interpretation, the pivotal questions remain unanswered.

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Intra-EU investment arbitration post-Achmea: A look at the additional remedies offered by the ECHR and EU law

24 April 2018 Guillaume Croisant; Xavier Taton, Europe

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In its landmark Achmea case, the Court of Justice of the EU (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law (see our previous post for a first analysis).

This decision potentially affects the roughly 200 BITs concluded between the EU Member States, although its overall implications are far from clear. Against that background, however, investors in EU Member States who object to State measures which have impacted their investments elsewhere in the EU might be expected to look for additional routes to a remedy. What might these be? Two which stand out for closer analysis in particular are the European Convention on Human Rights (“ECHR”) and the fundamental principles of EU law.

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CJEU judgment in Slovak Republic v. Achmea BV: intra-EU BITs incompatible with EU law

13 March 2018 Julia Grothaus; Rupert Bellinghausen, Europe; Germany

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In the much anticipated judgment of 6 March 2018 (Case C-284/16), the Court of Justice of the European Union (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law. As the decision potentially affects not less than 196 BITs between EU Member States (“intra-EU BITs”), it is likely to have significant consequences for the world of intra-EU BIT arbitration. Yet, its overall implications are far from clear, so that the judgment will loom large for some time to come.

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