Revue - Les Cahiers de l'Arbitrage N°1-2023 - 67

DOCTRINES - DÉBATS
dispute resolution processes. 20
In the absence of the investment arbitration
contemplated by the BITs and the ECT, intra-EU investment disputes would
ordinarily have ended up before a Member State court which is constitutionally
bound under EU law to resolve them in accordance with EU law principles,
including notably, but not limited to, the principles of free movement of capital 21
and freedom of establishment. 22
International investment tribunals came to be
viewed, as nowhere else, as interlopers, interfering with the dispute resolution
mechanisms locally in place and, worse yet, imposing massive, unprecedentedly
large awards of damages against Member States in favor of nationals of other
Member States.
(b) The EU Challenge to Intra-EU BITs
In the numerous intra-EU arbitrations that followed, both the respondent States
and the Commission as amicus curiae have consistently argued that the very
existence of intra-EU BITs was contrary to EU law, with the results that (a) the BITs
were null and void, (b) the tribunals established thereunder lacked jurisdiction,
and (c) the awards that those tribunals rendered were invalid. 23
The States and the
Commission did not merely advance political arguments to this effect, but also a
series of legal arguments based, depending on the argument, on one or another
provision of the EU treaties or one or more unwritten EU law principles.
One such provision was Article 18 of the TFEU, according to which " [w]ithin
the scope of application of the Treaties, and without prejudice to any special
provisions contained therein, any discrimination on grounds of nationality shall be
prohibited. " 24
The argument was that, by virtue of a BIT, a Member State would
accord to nationals of its partner Member State greater investment protection on
its territory than it would accord to similarly situated investors from Member States
with which it had no comparable investment agreement. Another such provision
was Article 344 of the TFEU, according to which " Member States undertake not to
submit a dispute concerning the interpretation or application of the Treaties to any
method of settlement other than those provided for therein. " 25
Intra-EU arbitration,
it was argued, was precisely one of those precluded modes of international dispute
resolution.
20. Declaration of the Representatives of the Governments of the Member States of 15 January
2019 on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment
Protection in the European Union 1 ( " Union law takes precedence over bilateral investment treaties
concluded between Member States " ), https://finance.ec.europa.eu/system/files/2019-01/190117bilateral-investment-treaties_en.pdf
[hereinafter Declaration] (last visited Mar. 9, 2023).
21. TFEU, supra note 8, art. 63.
22. Id. art. 49.
23. See, e.g., Addiko Bank AG and Addiko Bank d.d. v. Republic of Croatia, ICSID Case
No. ARB/17/37, Decision on Croatia's Jurisdictional Objection Related to the Alleged Incompatibility
of the BIT with the EU Acquis (June 12, 2020); Eskosol S.p.A. in liquidazione v. Italian Republic,
ICSID Case No. ARB/15/50, Decision on Termination Request and Intra-EU Objection (May 7,
2019); NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Kingdom
of Spain, ICSID Case No. ARB/14/11, Decision on Jurisdiction, Liability and Principles of Quantum
(Mar. 12, 2019).
24. TFEU, supra note 8, art. 18.
25. Id. art. 344.
Les Cahiers de l'Arbitrage 2023‑1
65

https://finance.ec.europa.eu/system/files/2019%E2%80%9101/190117-bilateral-investment-treaties_en.pdf https://finance.ec.europa.eu/system/files/2019%E2%80%9101/190117-bilateral-investment-treaties_en.pdf

Revue - Les Cahiers de l'Arbitrage N°1-2023

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°1-2023