Originally from the Journal of Enforcement of Arbitration Awards

Preview Page

I. INTRODUCTION

The judgment of the Court of Justice of the European Union (“CJEU”) in case no C-284/16 Achmea has left an unmistakable footprint in international investment arbitration. Several years have passed since the judgment was rendered and it has since been the subject of varying interpretations in the legal literature, arbitral practice and court rulings. Views as to the scope and legal effects of the judgment have differed substantially.

By now, there are several instances of respondent states (unsuccessfully) raising the “Achmea objection” in arbitral proceedings.  With regard to challenges of arbitral awards, thus far one ICSID ad hoc committee has upheld an award based on an intra EU BIT despite Achmea.  Two national courts in EU Member States have rendered judgments in which the CJEU’s findings in Achmea have been subject to interpretation: the Bundesgerichtshof (“BGH”), which set aside the arbitral award between Slovakia and Achmea B.V., and the Svea Court of Appeal, which dismissed the challenge of the arbitral awards between Poland and PL Holdings.  In the few enforcement cases where respondent states have made the Achmea-objection as a defense against enforcement, the picture is blurred by the fact that they have also relied on alleged violations of EU state aid law as a defense against enforcement. Nevertheless, as will be explained below, there are a few important takeaways from some of these cases.