In the Cross-Fire of International Arbitration and EU Law
Over the past two decades, much has been said about the interaction between international arbitration and EU law. Although tensions had already been brewing for some time, when the award in an intra-EU case – Achmea – reached the European Court of Justice, this interaction came to the forefront like never before. It became obvious that each regime sees the other as a major challenge to the achievement of its own fundamental purposes.
Compliance with EU law demands is also regularly raised as a defense to otherwise valid claims against EU Member States, not only in investor-State arbitration, but also more broadly in commercial disputes as well.
This article traverses through time before and after Achmea covering decisions of various tribunals invited to adjudicate intra-EU disputes as well as those of courts across the world called upon to enforce agreements to arbitrate intra-EU investment disputes, set aside intra-EU awards, and give effect to intra-EU awards. Discussed hereunder are the high-profile rulings of the European Court of Justice in the Komstroy and PL Holdings cases, as well as the judgments granting or denying enforcement actions in national courts in Europe and the U.S. in cases such as Micula, Infrared, and NextEra, among others.
Most significant to note is that even when the jurisdictional issues arising out of intra-EU cases fade over time, with the termination of intra-EU BITs and the weakening of the Energy Charter Treaty, opportunities for serious conflict will abound. To be reckoned with going forward are substantive conflicts as well, such as when compliance with EU law demands is invoked as a defense to otherwise valid claims against EU Member States, not only in investor-State arbitration, but more broadly in commercial disputes as well.
Dispute Resolution and Arbitration | European Law | Law
George A. Bermann,
In the Cross-Fire of International Arbitration and EU Law,
Les Cahiers de l'Arbitrage
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4164