Originally from The American Review of International Arbitration (ARIA)

ABSTRACT

The Court of Justice of the European Union landmark ruling in Achmea has profoundly influenced discussions on investor-State dispute settlement within the EU, extending its impact to the broader realm of international investment law. This article offers a jurisprudential analysis of Achmea’s continuing influence, focusing on its role as a defense in the enforcement of arbitral awards, as evidenced in recent cases in front of national courts of the United Kingdom and the United States. The advent of the “Achmea defense” echoes the “Achmea objections” encountered during arbitration, prompting a reassessment of jurisdictional and consent-related issues.

The contribution underscores a trend of national courts showing increasing deference to domestic legal tenets over international law, with a particular inclination towards accepting the Achmea defense. It posits that should this shift in judicial reasoning gain traction in higher courts, it may lead to domestic legal frameworks superseding international obligations delineated by the ICSID Convention and the New York Convention.

Focusing on the UK and US jurisdictions, the paper reveals complex issues relating to enforcement, execution, and consent, highlighting the imperative for ongoing scrutiny and engagement with the judicial evolution in response to Achmea across various legal systems. The article advocates for a dynamic interaction with post-Achmea judicial narratives and calls upon the legal and scholarly communities to delve into the intricate challenges facing the finality and binding authority of international arbitration.