The Fate of Investment Dispute Resolution after the Achmea Decision of the European Court of Justice

by Prof. Dr. Dres. h.c. Burkhard Hess

MPILux Working Paper 3 (2018)

Abstract: 

This paper explores the contents and consequences of the Achmea judgment recently given by the European Court of Justice (6 March 2018, case C-284/16).

In its first part, the paper analyses the judgment from a European point of view. It notes that Achmea is primarily concerned with the autonomy of the EU legal order in international dispute resolution and only secondarily with investment arbitration. The judgment seamlessly ties in with the Court’s Opinion 2/13 on the Accession of the EU to the European Convention of Human Rights.

In its second part, the paper assesses the consequences of the judgment for current and future investment dispute resolution. It argues that (i) investment arbitration is over for intra-EU Bilateral Investment Treaties and (ii) most likely also for intra-EU disputes under the Energy Charter Treaty; (iii) the European Commission must be careful not to jeopardise the supremacy of the ECJ in interpreting the EU law when concluding future international dispute resolution agreements; (iv) the same holds true regarding dispute resolution under the UK Withdrawal Agreement when negotiating the Brexit.