European Papers (Jun 2019)
Achmea: Consequences on Applicable Law and ISDS Clauses in Extra-EU BITs and Future EU Trade and Investment Agreements
Abstract
(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.
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