Achmea: Consequences on Applicable Law and ISDS Clauses in Extra-EU BITs and Future EU Trade and Investment Agreements

• Main Author: Quentin Declève
• Format: Article
• Language: English
• Published: European Papers (www.europeanpapers.eu) 2019-06-01
• Series: European Papers
• Subjects: intra-eu arbitration; investment law; investor-state dispute settlement; autonomy of eu law; extra-eu bit; ceta
• Online Access: https://www.europeanpapers.eu/en/e-journal/achmea-consequences-on-applicable-law-and-isds-clauses-in-extra-eu-bits

(Series Information) European Papers - A Journal on Law and Integration, 2019 4(1), 99-108 | Article | (Table of Contents) I. Introduction: the Achmea judgment. - II. The European Commission's assessment and the EU Member States' position. - III. Potential consequences for existing BITs, CETA and future trade and investment agreements. - III.1. Various forms of applicable law clauses. - III.2. Extra-EU BITs which are silent on the applicable law in investment disputes, and Extra-EU BITs whose applicable law clause contains a reference to the domestic law of the host State. - III.3. Extra-EU BITs whose applicable law clause provides for the application and interpretation of international law. - III.4. Extra-EU BITs whose applicable law clause provides for the sole application and interpretation of the provisions contained in the BIT. - IV. Conclusion. | (Abstract) In its judgment in Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice ruled that an investor-State arbitration clause in a bilateral investment treaty concluded between two EU Member States was contrary to the principle of the autonomy of the EU legal order. In this Article, I suggest that the Achmea judgment could have implications for the validity, not only of ISDS clauses in intra-EU BITs, but also of ISDS and applicable law clauses in BITs and other agreements concluded by the EU (or its Member States) with third States.