Revue - Les Cahiers de l'Arbitrage N°1-2023 - 70

ARTICLES - DEBATES
The CJEU's insistence that it be able to control the application of its law by
arbitral tribunals is nothing short of remarkable. Under its reasoning, courts in
other jurisdictions are also disabled from applying EU law because they too might
err in its application and their judgments, quite obviously, are not amenable to
correction by preliminary rulings of the CJEU. It seems mightily counter-intuitive
that the CJEU would prefer that EU law be altogether denied effect by foreign
courts than that it be subject to occasional mistakes of EU law on their parts.
No other jurisdiction has ever taken such a position. If all countries were to take
the position that the CJEU has taken, that would not only handicap international
arbitration, but transnational litigation as well.
The fact remains that the CJEU in Achmea declared the Netherlands-Slovak
Republic BIT's dispute settlement provision invalid as contrary to EU law largely
on that very ground and instructed the German Supreme Court to annul the
Achmea award, which that court promptly did. 40
Importantly, in order to suppose
that adjudication of intra-EU investment disputes by an arbitral tribunal threatened
the autonomy of the EU law, the Court necessarily presumed that any arbitral
tribunal ruling on an intra-EU dispute could not, in reaching its decision, avoid
engaging in the interpretation or application of EU law. 41
The ruling in Achmea was of course an important victory for the European
Commission which, as noted, had repeatedly challenged, albeit unsuccessfully,
the validity of intra-EU BITs before arbitral tribunals seated in the EU. In one such
case, Micula v. Romania, 42
the Commission went so far as to issue an order to
Romania forbidding it to pay an award that had been rendered against it in favor of
Swedish investors, doing so on the ground that the Sweden-Romania BIT and the
resulting Micula award were invalid. In that case, Romania, under compulsion of
EU law, had withdrawn from the investors a state aid that was invalid under EU law
governing state aid. 43
The Commission's injunction was all the more striking in that
Micula, unlike Achmea, was an ICSID award which, under the ICSID Convention,
courts of signatory States are prohibited from reviewing and are required to comply
with and enforce. 44
The Commission in effect barred Romania from performing
what appeared to be its enforcement obligations under the ICSID Convention.
Significantly, although the CJEU condemned the intra-EU BIT and the resulting
award categorically, it expressly confined the Achmea ruling to awards rendered
pursuant to intra-EU BITs. More specifically, in what in a common law system
would be termed dictum, the Court held its rejection of intra-EU agreements
and awards inapplicable to agreements and awards rendered in a commercial
arbitration as distinct from a treaty-based arbitration, stating that:
40. Luke Eric Peterson, In Highly-Anticipated Verdict, German Supreme Court Determines that
Achmea v. Slovakia Award Must Be Set Aside in Light of the Recent European Court of Justice Findings
on Intra-EU BIT Arbitration, Inv. Arb. Rep. (Nov. 8, 2018), https://www.iareporter.com/articles/
in-highly-anticipated-verdict-german-supreme-court-determines-that-achmea-v-slovakia-award-mustbe-set-aside-in-light-of-the-recent-european-court-of-justice-findings/
(last visited Mar. 9, 2023).
41. Achmea, supra note 34, ¶¶ 39-42.
42. Ioan Micula, Viorel Micula and others v. Romania, ICSID Case No. ARB/05/20, Award (Dec. 11,
2013) [hereinafter Micula].
43. Id. ¶ 825 ( " Romania's decision to revoke the incentives was reasonably tailored to the
pursuit of a rational policy (specifically, EU accession) " ).
44. Convention on the Settlement of Investment Disputes between States and Nationals of Other
States, arts. 53-54, Oct. 14, 1966, 575 U.N.T.S. 159 [hereinafter ICSID Convention].
68
The Paris Journal of International Arbitration 2023‑1

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

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