Intra-EU Investment Arbitration After Achmea

This note looks into the reality of intra-EU investment arbitration after the judgment of the Court of Justice of the European Union in Achmea. Achmea was initially referred to as a groundbreaking decision, which caused further steps to be taken to prevent intra-EU investment arbitration. However, recent decisions and judgments may call into question the effectiveness of this reform.

Post-Achmea Chaos

In 2018, the Court of Justice of the European Union (CJEU) rendered a long-awaited judgment, holding that "Articles 267 and 344 TFEU [Treaty on the Functioning of the European Union] must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic."¹ This judgment was groundbreaking.² This judgment also set the path for the termination of BITs