autonomy of EU legal order
To arbitrate or not to arbitrate versus Member States after PL Holding? An EU law perspective on intra-EU investment arbitration in the post-BITs era
Chiara Cellerino (Università degli Studi di Genova) 1. The judgement of the Court of Justice of the European Union (CJEU) in PL Holding v. Poland, delivered on 26 October 2021, is the latest in a series of decisions relating to the incompatibility of intra-EU investment arbitration with the principle of
EU law is alive and healthy: the Achmea case and a happy good-bye to intra-EU bilateral investment treaties
There can be little doubt that the long-awaited judgment of the Court of Justice in the Achmea case delivered on 6 March (Case C-284/16, Slovak Republik v. Achmea BV) gives the last word on the (even longer) debated issue relating to the (in)compatibility of intra-EU investment bilateral investment treaties (BITs) with the EU legal order. In particular, in sharp contrast with the Opinion of AG Wathelet, the Court does not hesitate to state that an arbitration tribunal established under a BIT between two Member States «call[s] into question not only the principle of mutual trust between Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation» (para. 58). The judgment is certainly to be welcome, it will have important consequences on the future of the intra-EU investment agenda, and may have some impact also on the extra-EU investment agenda (see infra, § 5). It finally clarifies a series of important legal questions which had often been raised in the last decade before investment arbitration tribunals seized under relevant intra-EU BITs or under the Energy Charter Treaty, that probably lacked an adequate EU law perspective.