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ARTICLE · 12 FEBRUARY 2019

The (Final?) Death Of Intra-EU Investor-State Arbitration

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At the risk of mixing metaphors, if Achmea (Slovak Republic v Achmea Case C-284/16) killed intra-EU investor-state arbitration ...

United KingdomLitigation, Mediation & Arbitration
Richard Power
Richard Power
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At the risk of mixing metaphors, if Achmea (Slovak Republic v Achmea Case C-284/16) killed intra-EU investor-state arbitration, and the European Commission's Communication COM(2018)547/2 of 19 July 2018 knocked the head off its zombie corpse, then the 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 drove a stake through its heart. In short, it would appear that intra-EU investor-state arbitration is finally dead.

Or is it?

Background to the Declarations

In Achmea the Court of Justice of the EU (CJEU) held that an arbitration clause in a bilateral investment treaty (BIT) between two EU Member States was incompatible with EU law. In the European Commission's (EC) Communication 19 July 2018 (the Communication), the EC stated that:

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