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Slowakische Republik (Slovak Republic) v. Achmea B.V.

  • Björn Arp (a1)
Extract

On March 6, 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU or Court) rendered its judgment in Slowakische Republic (Slovak Republic) v. Achmea B.V. (Achmea decision) in response to the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling. Deciding for the first time on the compatibility of the arbitration provision in bilateral investment treaties (BITs) with European Union (EU) law, the Court concluded that the investor-state arbitration clause in the Dutch-Slovak BIT was incompatible with EU law because it violated the principle of autonomy. The Court will soon respond to Belgium's request for an Opinion on the Canada-EU free trade agreement (FTA), where it will rule on the compatibility of extra-EU investment agreements with EU law.

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1 This Judgment, and the Opinion of the Advocate General Wathelet delivered on September 19, 2017, are available at http://curia.europa.eu (search for “284/16”).

2 CETA: Belgian Request for an Opinion from the European Court of Justice (Sept. 6, 2017), available at https://diplomatie.belgium.be/en/newsroom/news/2017/minister_reynders_submits_request_opinion_ceta.

3 Consolidated Version of the Treaty on the Functioning of the European Union, as published in O.J. C 326, October 26, 2012, pp. 47–390.

4 The basis for the application for setting aside the award in this case was Article 1,059(2) of the German Code of Civil Procedure.

5 See Opinion of Advocate General Wathelet, supra note 1, paras. 229–72.

6 Treaty on European Union, as published in O.J. C 326, October 26, 2012, pp. 13–46.

7 The Court referred to these cases: C-337/95, Parfums Christian Dior SA and Parfums Christian Dior BV v. Evora BV, 1997 ECR I-06013, para. 21; and C-196/09, Miles v. Écoles européennes, 2011 ECR I-05139, paras. 40–41.

8 The Court referred to these cases: C-126/97, Eco Swiss China Time Ltd. v. Benetton International NV, 1999 ECR I-03055, paras. 35–36, 40; and C-168/05, Mostaza Claro v. Centro Móvil Milenium SL, 2006 ECR I-10421, paras. 34–39.

9 The CJEU declared this a “shared” competence with the member states; see CJEU, Opinion 2/15, of May 16, 2017, para. 293, on the European Union's competence to conclude and sign the FTA with Singapore.

10 Opinion 2/13 on the Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454 (CJEU Dec. 18, 2014); Opinion 1/91 on the Agreement with the European Economic Area (EEA), 1991 ECR I-6079; and Opinion 1/09 on the Draft Agreement to Create a Uniform European Patent System, 2011 ECR I-01137.

11 Advocate General Wathelet described this division between member states in his Opinion, based on the intervention of most of them in the proceeding before the CJEU. He explained this division by observing that those member states in favor of compatibility are capital-exporting countries that have rarely been respondents in investment arbitrations, while those opposed receive foreign investment and have been respondents in such arbitrations. See Opinion of Advocate General Wathelet, supra note 1, paras. 34–36.

12 In particular, the judgment referred to the principles of mutual trust, sincere cooperation, and autonomy of EU law (paras. 58–59).

13 This position of the CJEU appears to be contrary to the understanding of the U.S. Supreme Court, which has held that “a treaty is a contract, though between nations,” and interpreted the arbitration clauses contained in the U.S.-Argentina BIT in the same way as a contract. BG Group plc v. Republic of Argentina, 134 S. Ct. 1198, 1208 (2014).

14 See, for instance, the recent explanation of the European Commission's position in the decision on state aid regarding Spain's support for renewable energy, which is the factual background for many investment arbitrations held against Spain. European Commission, State Aid SA.40348, Support for Electricity Generation from Renewable Energy Sources, Cogeneration, and Waste, para. 160 (2015/NN, Spain) (including the cases mentioned in notes 65 and 66).

15 Although the CJEU considered that it was not called to decide about the compatibility between the investment arbitration provisions and the principles of autonomy. Opinion 2/15, para. 301 (CJEU May 16, 2017).

16 The CJEU has developed a sui generis jurisprudence to accept the binding effect of WTO panel and Appellate Body decisions. In essence, the CJEU held that these decisions are inextricably linked to the contents of the WTO rules (to which the EU is a party), and that any enforcement actions taken by EU institutions of unfavorable WTO decisions are in reality enforcement measures of the WTO rules, without adding obligations not already stated in those rules. See Joined Cases C-120/06 P and C-121/06 P, FIAMM and Others v. Council and Commission, 2008 ECR I-6513, paras. 126, 129.

17 GA Res. 40/72, of December 11, 1985 (as revised in 2006).

18 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), Art. V, entered into force June 7, 1959, 330 UNTS 38.

19 On May 16, 2018 the Swedish Court of Appeal annulled a February 2018 award in the case of NovEnergia II – Energy & Environment (SCA), Société d'Investissement à Capital Risque v. Kingdom of Spain. According to press reports, that court annulled the award on the basis of the CJEU's Achmea decision. See Tribunal de Suecia suspende la ejecución del laudo de NovEnergia contra España por recorte a las renovables, Europa Press, Madrid (May 17, 2018), available at www.europapress.es (search in the section on “Economy”). The same day of the annulment, the award was submitted to the U.S. District Court for the District of Columbia for confirmation. See Case No. 1:18-cv-01148, available at www.pacermonitor.com (search for “NovEnergia”). This District Court has not yet taken a decision on the petition to confirm the arbitration award.

20 Even when a state filed a notice of denunciation or withdrawal, tribunals have required states to arbitrate investor claims literally until the last day the treaty was in force. For instance, in Venoklim v. Venezuela, the claimant filed the Request for Arbitration on July 23, 2012, just one day before the lapse of the six-month period after Venezuela's notification to denounce the ICSID Convention. The arbitral tribunal held that the Request for Arbitration was validly filed. See Venoklim Holding B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/22, Award, paras. 79–80 (Apr. 3, 2015).

21 Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, para. 697, lit. b (May 16, 2018).

22 Id., paras. 678–83 (especially para. 678).

23 Caroline Simson, Netherlands Will Look to Terminate Its EU Investment Pacts, Law360 (May 1, 2018), at https://www.law360.com/internationalarbitration/articles/1039369/netherlands-will-look-to-terminate-its-eu-investment-pacts.

24 Id.

25 For instance, the Netherlands-Slovak BIT at issue in the Achmea decision provides for interstate arbitration in Article 10, although, according to the CJEU, this may be in violation of TFEU Article 344 when the dispute involves two EU member states. In the recent case of Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, the participation of the Emirate of Abu Dhabi as an investor in a Netherlands’ registered claimant company may lead to diplomatic pressure against Spain and/or the EU, as reported in the press shortly after the rendering of the award. See España pierde su tercer laudo arbitral millonario por el recorte de renovables, El País (May 16, 2018), at https://elpais.com/economia/2018/05/16/actualidad/1526488086_008707.html.

26 See Negotiating Directives for a Convention Establishing a Multilateral Court for the Settlement of Investment Disputes, 12981/17, ADD1, DCL1 (Mar. 20, 2018), available at http://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf.

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