Have there been any recent court decisions in your country considering the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16) with respect to intra-European Union bilateral investment treaties or the Energy Charter Treaty? Are there any pending decisions?

International Arbitration (4th edition)

Argentina Small Flag Argentina

No. The Achmea decision is not an issue in Argentina so far. There are no pending decisions as far as we know.

Austria Small Flag Austria

There are no Austrian court decisions considering the case. No pending decisions are known.

Bulgaria Small Flag Bulgaria

Given the fact that ISDS is confidential, one can only assume whether there was certain relation between Achmea judgment and the fact that the case EVN AG v. Republic of Bulgaria (ICSID Case No. ARB/13/17) is listed to be decided in favour of the state. We shall follow closely the outcome of ENERGO-PRO a.s. v. Republic of Bulgaria (ICSID Case No. ARB/15/19),ČEZ, a.s. v. Republic of Bulgaria (ICSID Case No. ARB/16/24) and ACF Renewable Energy Limited v. Republic of Bulgaria (ICSID Case No. ARB/18/1).

United States Small Flag United States

Yes. In Micula v. Gov’t of Romania, No. 17-CV-02332 (APM), 2019 WL 4305533 (D.D.C. Sept. 11, 2019), a district court held that Romania had failed to show — under the FSIA jurisdictional exceptions — that the Achmea decision had divested it of jurisdiction by invalidating the underlying arbitration clause. However, the applicability of Micula to other intra-EU cases is unclear. The district court found, inter alia, that Achmea did not apply in Micula because all of the key events occurred before Romania’s accession to the EU (including the entry into force of the bilateral investment treaty, the revocation of the incentives and the launch of the arbitration) and because the dispute before the ICSID tribunal in the Micula case did not relate to the interpretation or application of EU law. Finding that it had jurisdiction, the Court confirmed the arbitral award.

In Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, No. CV 18-2254 (JEB), 2019 WL 4564533 (D.D.C. Sept. 18, 2019), the same district court, with a different presiding judge, granted a stay of confirmation proceedings until an ICSID committee has ruled whether Achmea invalidates the arbitration agreement on which the award was based. A stay was also granted in Infrastructure Servs. Luxembourg S.A.R.L. & Energia Termosolar B.V. v. Spain, No. 18-1753 (D.D.C. Aug. 28, 2019), under nearly identical circumstances, i.e., pending annulment proceedings before ICSID committee on the basis of the Achmea decision.

UAE Small Flag UAE

As mentioned above, in general, Federal Court decisions are not rendered public in the UAE (although DIFC and ADGM Court decisions generally are) and, as such, case reporting is limited.

In that context there have been no publicised or commented UAE Court decisions that considered the aforementioned judgment and it is unlikely that any judgment will do so in the future, given the remoteness to UAE’s arbitral and judicial practice of the topics the said Court of Justice of the European Union judgment covered.

Singapore Small Flag Singapore

No.

South Korea Small Flag South Korea

No recent pending or published court decision in Korea has considered the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16).

France Small Flag France

In France, there has been no recent decision considering the Achmea judgment.

Germany Small Flag Germany

The German Federal Court (Bundesgerichtshof) decided in a follow-on matter against Achmea BV that the related judgment of the Court of Justice of the European Union in Case C-284/16 is consistent with German arbitral law. The Court of Justice of the European Union had decided that arbitration clauses in bilateral investment treaties between Member States of the European Union (intra-EU BITs) offering investors to resort to arbitration against the States are "inapplicable" as they infringe the system of judicial review established by the EU. The German Federal Court noted that the lack (or inapplicability) of an arbitration agreement equals the invalidity of an arbitration agreement as referred to in section 1059 (1) Nr. 1 lit. a ZPO and set aside Achmea's Final Award obtained in the PCA Case No. 2008-13 (Bundesgerichtshof, 31 October 2018 – I ZB 2/15).

India Small Flag India

There is no judgement passed or case pending in India on abovementioned judgement.

Indonesia Small Flag Indonesia

None that we are aware of.

Liechtenstein Small Flag Liechtenstein

No published decisions are known to date.

Malaysia Small Flag Malaysia

There are no recent court decisions which considered the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16)

Egypt Small Flag Egypt

No court decisions have been made on this case specifically. Furthermore, with regard to the matter of respective views on intra BITs, the trend in Egypt, considering its place in the African region, is quite the contrary to Europe as a whole. The African region is presently pro-intra-African/intra-regional BITs, a trend that is generally on the rise between countries of the African region.

Czech Republic Small Flag Czech Republic

Although this decision was naturally followed by intense discussion, this has not so far been reflected in the decisions of the courts. Developments may be expected once the period imposing upon states the obligation to terminate the investments treaties has expired.

Canada Small Flag Canada

No, there are no reported decisions.

Cyprus Small Flag Cyprus

No.

Chile Small Flag Chile

No.

Mexico Small Flag Mexico

No, there is no precedent of any awards in Mexico considering that judgement.

Nigeria Small Flag Nigeria

No.

Norway Small Flag Norway

Not to our knowledge.

Philippines Small Flag Philippines

The Philippine Supreme Court has not yet issued any decision that considers the judgment in in Slovak Republic v Achmea BV (Case C-284/16) which found the arbitration clause in bilateral investment treaty as incompatible with European law. However, the recent decision in Mabuhay Holdings Corporation v Sembcorp Logistics Limited [2018], appears to be a move in the opposite direction where a claim of violation of public policy due to the incompatibility with the arbitral award and Philippine law was rejected by the court.

Saudi Arabia Small Flag Saudi Arabia

In Saudi Arabia, court decisions are not made publically available. However, we are aware of an award having been set aside on the ground that it was not final (and only when the court was presented with a court judgment from the issuing country to that effect), which is a requirement of enforcement.

Taiwan Small Flag Taiwan

There are no relevant decisions on this matter.

Switzerland Small Flag Switzerland

Switzerland as a non-member of the European Union is not bound by the judgments of the Court of Justice of the European Union. While the decisions of the supreme court of the European Union are reviewed in Switzerland, the judgment in Slovak Republic v Achmea BV (Case C-284/16) has, thus far, not found its way into Swiss jurisprudence, and there have been no recent court decisions in Switzerland which have expressly or otherwise considered the aforementioned judgment.

However, against the backdrop of ongoing negotiations between Switzerland and the European Union in relation to the draft of a new framework agreement, the judgment rendered by the Court of Justice of the European Union has been a topic of discussion amongst Swiss legal scholars, and gave rise to the question of whether the Court of Justice of the European Union would opt for a similar approach in relation to an agreement between the European Union and a third party as it has with respect to inter-European Union bilateral investment treaties.

Turkey Small Flag Turkey

No.

Updated: November 8, 2019