Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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There is nothing more stimulating, for our friend George, than a new challenging issue to address. He has always been at the forefront of legal thought and keeps encouraging others to contribute. He appeals to experience, intuitions and intelligence, always driving any project by the fact that, while the specific issue has a conceptual character, it is also of concrete importance in international arbitration practice. As he has once said in preparing a conference, he is “in fact drawn to the project not by an academic impulse, but by [his] actual experiences both as international arbitrator and as expert in international arbitral proceedings”.  
The reason for my writing today is precisely to contribute to a question that George has recently described as “a particularly challenging challenge”, i.e. the conflict between European law and international arbitration. 

In a recent case I had before an ICSID ad hoc committee,  an argument was made by the State respondent that the arbitral tribunal, in rejecting the 2018 Achmea judgment of the CJEU,  had wrongly assumed jurisdiction and, for this reason, the ad hoc committee was asked to review the award de novo. The argument was that the tribunal either had jurisdiction or not, and the ad hoc committee had to review the award to the fullest extent, even with new argument and new evidence. Reference was made to a statement by Professor Gabrielle Kaufmann-Kohler in an article of 2004 in which she noted that “[a] tribunal either has jurisdiction or it does not; there is nothing in between.