Recently, the BGH issued a breakthrough decision in Achmea B.V. vs. Slovak Republic case which immediately caught the attention of many practitioners and academicians.
The BGH reached in its decision the conclusion that it can decide on the motion of the Slovak Republic to set aside the Final Award rendered in the Achmea B.V. vs. the Slovak Republic investment arbitration, only once it has received the opinion of the Court of Justice of the European Union. Hereby the BGH followed the Slovak Republic’s request. Achmea commenced investment arbitration proceedings under the UNCITRAL Rules in 2008. Achmea claimed that the Slovak Republic’s legislative activities resulted in the breach of investor’s rights under the Slovak-Dutch intra-EU BIT. The Slovak Republic denied the claims and requested that the Tribunal reject the jurisdiction to hear the case, as accession to the EU had rendered the intra-EU BIT null and void due to its incompatibility with EU law.
The matter inspires many diverse opinions among professionals. Therefore it is very positive this matter made it to the Court of Justice of the EU which is the only institution authorized to decide the intra-EU BIT agenda and bring the much needed certainty states and investors are seeking for.
ROWAN LEGAL, who acted together with the Ministry of Finance on behalf of the Slovak Republic in the arbitration proceedings, has been deeply involved and participated at all stages in the process of supporting the Slovak Republic’s aim to tackle the intra-EU BIT dispute resolution system. We therefore welcome the BGH’s decision and consider it to be an important step towards the resolution of the question concerning the compatibility of the investment protection regime under intra-EU BITs with EU law.
The full wording of the decision to be found here: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2016&Sort=3&nr=74612&linked=bes&Blank=1&file=dokument.pdf
