Long before the Treaty of Lisbon and the inclusion of Foreign Direct Investment in the Common Commercial Policy of the EU, international investment law was the main tool of investment policy in Europe; over the years EU States have concluded over 1,300 bilateral investment treaties (“BITs”). In this context, there has been a tendency to resort to alternative dispute resolution processes especially in the areas of commerce and investment.
For decades, international arbitration and EU law had managed not only to coexist but also to harmonically interact. However, since 2007 and the Eastern Sugar v. Czech Republic Award, this interaction transformed into a clear tension, especially in the field of investment arbitration, as for the first time a respondent Member State argued that intra-EU BITs had been superseded by EU law. Recently, the legal discussion concerning the relationship between international arbitration and EU law has officially opened. This discussion is reflected in the European Commission’s decisions as well as in the case law of the Court of Justice of the European Union. The latest development is of course the Achmea Judgement, following the Micula case pending before the General Court and the Belgian request for an Opinion by the ECJ concerning the compatibility of the permanent dispute resolution mechanism contained in the EU-Canada Comprehensive and Economic Trade Agreement (“CETA”) with the EU treaties (Opinion 1/17).