On 6 March 2018, the Court of Justice of the European Union (“CJEU” or the “Court”) issued its long-awaited decision in the case of Achmea v the Slovak Republic (Case C 284/19). In the case, the CJEU was asked to render a preliminary ruling on the question whether investor-to-state arbitration based on a bilateral investment treaty between two EU-member states (a so-called “intra-EU BIT”) is compatible with the law of the European Union – a question the court answered in the negative.
It is fair to say that the decision came to many as a surprise not in the least because the court departed from Advocate General Wathelet’s opinion of 19 September 2017 who had opted for the compatibility of the arbitration clause in the BIT between, in this case, the Netherlands and Slovakia. The decision has immediately sparked much debate. Its reasoning has been described by some critics as “full of ideology, light on detail and void of dogmatic basis”, a political ruling where the reasoning was adapted to the intended result or as one early commentator put it, the CJEU’s commands that “thou shalt have no tribunals before me”. Others have hailed the clarification that the decision brings in the long brewing power struggle between investor-to-state arbitration and EU law. The latter has been at the source of much discussion between arbitral tribunals and the European Commission (“EC”).