The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment

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The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment. / Gáspár-Szilágyi, Szilárd; Usynin, Maxim.

In: European Investment Law and Arbitration Review Online, Vol. 4, No. 1, 2019, p. 29–65.

Research output: Contribution to journalJournal articleResearchpeer-review

Harvard

Gáspár-Szilágyi, S & Usynin, M 2019, 'The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment', European Investment Law and Arbitration Review Online, vol. 4, no. 1, pp. 29–65. https://doi.org/10.1163/24689017_00401003

APA

Gáspár-Szilágyi, S., & Usynin, M. (2019). The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment. European Investment Law and Arbitration Review Online, 4(1), 29–65. https://doi.org/10.1163/24689017_00401003

Vancouver

Gáspár-Szilágyi S, Usynin M. The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment. European Investment Law and Arbitration Review Online. 2019;4(1):29–65. https://doi.org/10.1163/24689017_00401003

Author

Gáspár-Szilágyi, Szilárd ; Usynin, Maxim. / The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment. In: European Investment Law and Arbitration Review Online. 2019 ; Vol. 4, No. 1. pp. 29–65.

Bibtex

@article{878f44b7731242b6a761a62e33e9f9e4,
title = "The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment",
abstract = "This paper focuses on the ways in which investment tribunals constituted under intra-EU BITs and the Energy Charter Treaty (in an intra-EU dispute) have reacted to the Court of Justice’s Achmea judgment of 6 March 2018. The first part of the paper maps out the existing intra-EU arbitrations in which the issues arising from Achmea appear in one form or another. We then take a critical look at how the disputing parties have used Achmea in their argumentation and how the investment tribunals have dismissed these arguments and upheld their jurisdiction. The second part of the paper is analytical. When the tribunals uphold their jurisdiction and decide on the merits, they knowingly deliver an award, which is unenforceable in the Respondent State and the entirety of the EU. By drawing parallels with decisions rendered by other international tribunals, we argue that the rendering of potentially unenforceable awards is not specific to intra-EU investment disputes. We then look at why international tribunals render potentially unenforceable awards. The third part of the paper presents several suggestions of how intra-EU investment tribunals should tackle the Achmea conundrum, either by declining their jurisdiction pursuant to judicial comity or upholding their jurisdiction but dismissing the cases as inadmissible.",
keywords = "Faculty of Law, foreign direct investment, Achmea, European Court of Justice, intra-EU investment treaty arbitration, enforcement of arbitral awards, admissibility, compliance, judicial comity",
author = "Szil{\'a}rd G{\'a}sp{\'a}r-Szil{\'a}gyi and Maxim Usynin",
year = "2019",
doi = "10.1163/24689017_00401003",
language = "English",
volume = "4",
pages = "29–65",
journal = "European Investment Law and Arbitration Review Online",
issn = "2468-9017",
publisher = "Brill | Nijhoff",
number = "1",

}

RIS

TY - JOUR

T1 - The Uneasy Relationship between Intra-EU Investment Tribunals and the Court of Justice’s Achmea Judgment

AU - Gáspár-Szilágyi, Szilárd

AU - Usynin, Maxim

PY - 2019

Y1 - 2019

N2 - This paper focuses on the ways in which investment tribunals constituted under intra-EU BITs and the Energy Charter Treaty (in an intra-EU dispute) have reacted to the Court of Justice’s Achmea judgment of 6 March 2018. The first part of the paper maps out the existing intra-EU arbitrations in which the issues arising from Achmea appear in one form or another. We then take a critical look at how the disputing parties have used Achmea in their argumentation and how the investment tribunals have dismissed these arguments and upheld their jurisdiction. The second part of the paper is analytical. When the tribunals uphold their jurisdiction and decide on the merits, they knowingly deliver an award, which is unenforceable in the Respondent State and the entirety of the EU. By drawing parallels with decisions rendered by other international tribunals, we argue that the rendering of potentially unenforceable awards is not specific to intra-EU investment disputes. We then look at why international tribunals render potentially unenforceable awards. The third part of the paper presents several suggestions of how intra-EU investment tribunals should tackle the Achmea conundrum, either by declining their jurisdiction pursuant to judicial comity or upholding their jurisdiction but dismissing the cases as inadmissible.

AB - This paper focuses on the ways in which investment tribunals constituted under intra-EU BITs and the Energy Charter Treaty (in an intra-EU dispute) have reacted to the Court of Justice’s Achmea judgment of 6 March 2018. The first part of the paper maps out the existing intra-EU arbitrations in which the issues arising from Achmea appear in one form or another. We then take a critical look at how the disputing parties have used Achmea in their argumentation and how the investment tribunals have dismissed these arguments and upheld their jurisdiction. The second part of the paper is analytical. When the tribunals uphold their jurisdiction and decide on the merits, they knowingly deliver an award, which is unenforceable in the Respondent State and the entirety of the EU. By drawing parallels with decisions rendered by other international tribunals, we argue that the rendering of potentially unenforceable awards is not specific to intra-EU investment disputes. We then look at why international tribunals render potentially unenforceable awards. The third part of the paper presents several suggestions of how intra-EU investment tribunals should tackle the Achmea conundrum, either by declining their jurisdiction pursuant to judicial comity or upholding their jurisdiction but dismissing the cases as inadmissible.

KW - Faculty of Law

KW - foreign direct investment

KW - Achmea

KW - European Court of Justice

KW - intra-EU investment treaty arbitration

KW - enforcement of arbitral awards

KW - admissibility

KW - compliance

KW - judicial comity

UR - https://papers.ssrn.com/abstract=3496797

U2 - 10.1163/24689017_00401003

DO - 10.1163/24689017_00401003

M3 - Journal article

VL - 4

SP - 29

EP - 65

JO - European Investment Law and Arbitration Review Online

JF - European Investment Law and Arbitration Review Online

SN - 2468-9017

IS - 1

ER -

ID: 233797892