Achmea: Consequences on Applicable Law and ISDS Clauses in Extra-EU BITs and Future EU Trade and Investment Agreements

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Table of Contents: I. Introduction: the Achmea judgment. – II. The European Commission's assessment and the EU Member States’ position. – III. Potential consequences for existing BITs, CETA and future trade and investment agreements. – III.1. Various forms of applicable law clauses. – III.2. Extra-EU BITs which are silent on the applicable law in investment disputes, and Extra-EU BITs whose applicable law clause contains a reference to the domestic law of the host State. – III.3. Extra-EU BITs whose applicable law clause provides for the application and interpretation of international law. – III.4. Extra-EU BITs whose applicable law clause provides for the sole application and interpretation of the provisions contained in the BIT. – IV. Conclusion.

Abstract: In its judgment in Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice ruled that an investor-State arbitration clause in a bilateral investment treaty concluded between two EU Member States was contrary to the principle of the autonomy of the EU legal order. In this Article, I suggest that the Achmea judgment could have implications for the validity, not only of ISDS clauses in intra-EU BITs, but also of ISDS and applicable law clauses in BITs and other agreements concluded by the EU (or its Member States) with third States.

Keywords: intra-EU arbitration – investment law – investor-State dispute settlement – autonomy of EU law – extra-EU BIT – CETA.

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European Papers, Vol. 4, 2019, No 1, pp. 99-108
ISSN
2499-8249 - doi: 10.15166/2499-8249/282

* Lawyer, Van Bael & Bellis law firm, qdecleve@vbb.com.

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