In a decision dated October 31, 2018 (Docket No. I ZB 2/15) the German Federal Court of Justice has set aside a EUR 22 million arbitral award in favor of Dutch insurer Achmea in a long-running dispute at the intersection of EU law and investment arbitration. The Court’s decision follows the ruling of the European Court of Justice (“ECJ”) in Slovak Republic v. Achmea BV (Case C-284/16) on March 6, 2018 that found that arbitration provisions of bilateral investment treaties concluded between EU Member States are incompatible with EU law.
We had previously reported about this case numerous times (see Dispute Resolution Journal, August/October 2012, p. 13, Dispute Resolution Journal, Vol. 68 No. 3, p. 93, Dispute Resolution Journal, Vol. 70 No. 1, p. 116, Dispute Resolution Journal, Vol. 73 No. 1, p. 131). Here a brief recap: The case started in October 2008, when the Dutch insurance group Achmea (formally Eureko BV) commenced arbitration against Slovakia based on 1991 Netherlands-Slovakia bilateral investment treaty (“BIT”). Achmea claimed damages for wrongful expropriation by Slovakia’s partial reversal of the liberalization of its health insurance market to private investors. An arbitral tribunal was constituted according to the provisions of the BIT and pursuant to the UNCITRAL Arbitration Rules with the seat of arbitration in Frankfurt am Main.