ARB/12/12) ruled exclusively on the Achmea issue. In that case, since the tribunal considered that the Achmea decision amounted to a new fact, Germany was allowed to submit a Home new jurisdictional objection after the jurisdictional phase was over. In its Editorial analysis, the tribunal agreed with the claimants that in ICSID arbitration Insight the tribunal’s jurisdiction was not When arbitration is not circumscribed to any domestic laws and voluntary: the case of Mutu should be examined in the light of Article and Pechstein v. Switzerland 26 of the ECT —under which the parties’ consent was given— and interpreted in Global Briefing accordance with international law. The impact of The Belt and Road Initiative on investment arbitration Firstly, the tribunal found no wording in Article 26 nor any principle in public “What’s in a name?”: NAFTA to USMCA and what this international law granting primacy to EU change means for investment law over the ECT or other rules. In the protection protects intra-EU investors. It also dealt The EC asserted that any arbitral tribunal tribunal’s view, the EC’s suggestion that with the question of Article 26 ECT:the EC observed that, if interpretedconstituted under intra-EU BITs “lacks jurisdiction EU law should be used to harmoniously In Focus due to the absence of a valid arbitration interpret Article 26 ECT (thus excluding Cultural Heritage correctly, this Article does not cover intra-EU arbitration) would lead to Considerations in arbitrations between investors from agreement” International Investment rewriting Article 26 with external rules. Arbitration one Member State against another This would contradict the ordinary Member State. Thus, the EC, as it had basis. It also highlighted that all Member have been two post-Achmea arbitral meaning of its wording and create a Smart Contracts and previously stressed in amicus curiae States must terminate intra-EU BITs, decisions that have addressed the intra- International Arbitration: new set of “intra-EU” obligations, while Friends or Foes? submissions, equates Article 26 ECT under penalty of potential infringement EU issue intertwined with the special maintaining another set of obligations with other intra-EU BITs arbitration proceedings. standing of ICSID arbitration under applicable to the rest of disputes. The Achmea decision: clauses. Consequently, the EC considers international law: Vattenfall v. Germany significant uncertainties linger that intra-EU arbitration under the ECT In the meantime, arbitral tribunals seem and Up v. Hungary. Secondly, the tribunal refrained from should suffer the same fate. to be turning a deaf ear to the EC’s considering whether the ECT posed the Investment Arbitration: opinion. Since the Achmea decision, The Uncertainties on Intra-EU Contact Lawyers same EU law concerns as those that Moreover, the EC asserted that any arbitral tribunals hearing investment Arbitration under the ECT the ECJ found in relation to the Dutch- arbitral tribunal constituted under claims under the ECT have neglected Slovak BIT. intra-EU BITs “lacks jurisdiction due to apply the CJEU’s conclusions for the On 31 August 2018, an ICSID tribunal to the absence of a valid arbitration determination of their jurisdiction over hearing a Swedish investor’s claim Thirdly, the tribunal highlighted Article 16 agreement”. Therefore it declared that proceedings. Besides the Masdarand against Germany under the ECT ECT, which establishes that international national courts must annul or refrain Antin ECT cases, already discussed in (Vattenfall AB and others v. Federal agreements concerning any right to from enforcing awards rendered on that the previous issue of the Outlook, there Republic of Germany, ICSID Case No. dispute resolution shall not be construed www.uria.com 20