Max Planck Lecture Series
The Clash Between International Investment Law and the Autonomy of The EU Legal Order

20 June 2019

On June 20th, 2018, the MPI Luxembourg welcomed Professor Nicolas de Sadeleer and Ms. Ivana Damjanovic. Starting from the analysis of the landmark judgment of the European Court of Justice in the case Slovakia v Achmea, the speakers provided an in-depth reflection over the clash between international investment law and the autonomy of the EU legal order. Indeed, in the Achmea case the CJEU held that Investor-State dispute settlement (ISDS) adversely affects the autonomy of EU law. Accordingly, ISDS clauses in international investment agreements that contravene Articles 267 and 344 TFEU and the principles of mutual trust and sincere cooperation enshrined in Articles 19(1) and 4(3) TEU are inapplicable under EU law. The speakers underlined that the consequences of this judgment are significant, given that around 170 Bilateral Investment Agreements concluded between the different Member States will now have to be abrogated. However, the reasoning of the CJEU in Achmea did not convince international investment tribunals that they lack jurisdiction in intra-EU investment disputes. Since the delivery of the Achmea judgment, every Investment Tribunal has considered that the EU case law was inapplicable. This opposition calls for clarification of the different principles underpinning the EU legal order and international investment law.