The Achmea decision: Home significant uncertainties linger Jana Lamas de Mesa Editorial International Arbitration Insight When arbitration is not voluntary: the case of Mutu n the Achmea decision of case. Spain requested, in the alternative, to and Pechstein v. Switzerland I March 2018 the Court of refer to the CJEU for a preliminary ruling on Justice of the European the compatibility of the ECT with EU law Global Briefing Union (the “CJEU”) ruled in view of Achmea. However, should the The impact of The Belt and that investor-state Swedish court seek a preliminary ruling, a Road Initiative on investment arbitration clauses in intra-EU BITs are decision by the CJEU in this regard is not to arbitration not compatible with EU law. While any be expected any time soon. “What’s in a name?”: NAFTA arbitral tribunal constituted under these to USMCA and what this clauses may be required to interpret or The European Commission makes change means for investment protection apply EU law, the CJEU observed that itself clear such tribunals are not state courts within the meaning of Article 267 TFEU. Hence, Amidst this legal uncertainty, the In Focus European Commission (the “EC”) Cultural Heritage they cannot refer to the CJEU for Considerations in preliminary rulings on EU law, has advanced its position. Following International Investment jeopardising the full effectiveness of EU the Achmea judgment, it released a Arbitration law. Further, the CJEU deliberately1 communication on the subject, in which Smart Contracts and refrained from pronouncing on whether it observed that intra-EU BITs confer International Arbitration: the same conclusion applies to investor- rights upon investors from one Member Friends or Foes? state arbitrations between Member State, resulting in a conflict with the The Achmea decision: States under the ECT, to which the EU principle of non-discrimination under significant uncertainties linger itself is a contracting party. EU law. The communication also argued that intra-EU BITs set up an alternative Investment Arbitration: In this context, Spain is seeking the system of dispute resolution, removing Contact Lawyers annulment by Swedish courts of a EUR 53 litigation involving EU law from domestic million award rendered in the Novenergia courts and entrusting this litigation to private arbitrators, who cannot fully and 1On 31 October 2018, Germany’s highest court, whicheffectively apply EU law. referred the preliminary question on intra-EU BIT’s compatibility with EU law to the ECJ, followed the Achmea judgment and set aside the EUR 22 million award in favourThe EC’s communication focused on of the investor, Achmea, on the basis that there was no valid arbitration agreement under the Netherlands-Slovakiahow the EU legal system sufficiently www.uria.com BIT and, therefore, the arbitral tribunal had no jurisdiction. 19