Originally from Investment Treaty Arbitration and International Law - Volume 13

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Fiat justitia, pereat mundus.

“Let justice be done, even if the world must perish from it.”

Immanuel Kant

I. INTRODUCTION 

Alas! The European Commission’s (the “EC”) decade-long campaign against intra-European Union bilateral investment treaties  (“intra-EU BITs”) has come to a victorious end with the Court of Justice of the European Union’s (the “CJEU”) judgment of 6 March 2018 in the Case C-284/16 (the “Achmea judgment”).  Or has it just yet?

The CJEU found, in short, that intra-EU arbitration agreements, such as the one found in the Netherlands-Slovakia BIT, are incompatible with EU law, in that they contravene the CJEU’s exclusive jurisdiction to interpret EU law and frustrate the principle of autonomy of the EU.

As a brief reminder of the EU legal system, this decision rendered by the European Court of Justice (i.e., the highest court of the CJEU and supreme court of the European Union in matters of EU law) is final and binding on the 28 EU Member States and their domestic courts, which essentially means that the 28 Member States can no longer take part in intra-EU arbitrations or enforce resulting awards, thereby virtually shattering the entire international investment protection system within the EU.