Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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I. FROM ACHMEA TO MICULA TO KOMSTROY TO PL HOLDINGS . . . WHAT CAN WE LEARN? 

In its Achmea (C-248/16) and, more recently, in Micula (Cases T‑624/15, T‑694/15 and T‑704/15) decisions, the European Court of Justice (CJEU) seems to have made a decisive turn, a conscious choice, that opening up to foreign jurisdictions might eviscerate the homogeneity in the interpretation and application of EU law, since its quintessential elements risks being misunderstood by foreign judges and arbitrators. But in its advisory opinion 1/17 dated April 30, 2019, the CJEU saw no inconsistency between the establishment of an ISDS (investor-state dispute settlement) mechanism in CETA (Canada-European Union Trade Agreement) since the established forum would not be interpreting EU-, but CETA law. Following this, the CJEU issued two decisions restricting intra EU dispute settlement through ISDS. In the Komstroy decision (C-741-19), the CJEU concluded that the investor-state dispute settlement in the Energy Charter Treaty, which involved both EU and non-EU member states, could not be used to resolve intra-EU disputes. In the PL Holding decision (C 109/20), the CJEU ruled that ad hoc arbitration agreement between an intra EU investor and member state was incompatible with EU law. This begs the question—where exactly lie the limits of EU law? Is not international law (e.g., CETA) supposed to be an integral part of EU law? These are the themes we would like to address in this short Note.