Groningen Journal of International Law

International Law Under Construction

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The Dichotomy Between European Union Law and International Law: Responses to the Achmea Judgment of the European Court of Justice

Cees Verburg |

In March 2018 the Court of Justice of the European Union (CJEU) ruled in a preliminary procedure that the investor-State arbitration clause contained in the Netherlands-Slovakia Bilateral Investment Treaty (BIT) was incompatible with primary European Union (EU) law. Due to the language employed by the CJEU, this ruling casts doubt over investor-State arbitration clauses in nearly 200 existing BITs concluded between EU Member States as well as the intra-EU applicability of the arbitration clause of the multilateral Energy Charter Treaty (ECT) to which the EU itself is a Contracting Party.

In a blog post written a week after the judgment I argued that one should not expect that international arbitration tribunals constituted under the existing intra-EU investment treaties will suddenly decline jurisdiction because of the CJEU judgment. This blogpost aims at providing an overview of the subsequent developments in relation to the above–mentioned Achmea judgment and the consequences that this judgment entails for intra-EU investor-State arbitration on the basis of investment treaties.

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