Post-Achmea Apocalypse for EU Law in International Investment Arbitration

Following the adoption of the ruling in the Achmea case by the Court of Justice of the European Union on 6 March 2018, the immediate question was whether this particular decision could have the effect of exceeding the framework within which it was rendered. In other words, the question was whether Achmea could potentially have an effect on both EU investment policy and pending investment arbitration cases. The EU and its Member States employed the Achmea decision in many ways not only for redefining its investment policy objectives but also for reinvigorating the intra-EU debate within investment arbitration on the incompatibility of BITs with EU law. All investment tribunals rejected the relevance and rationale of the Achmea decision. The purpose of this contribution is to examine the reasons used by investment tribunals to reject Achmea and the renewed intra-EU BITs preliminary objections. The analysis covers twelve post-Achmea investment cases based on intra-EU BITs. Despite a whole set of differences, in terms of applicable BITs and different arbitration rules, these tribunals were unanimous in reasserting the authority of ISDS over EU law