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Slowakische Republik (Slovak Republic) v. Achmea BV (C.J.E.U.)

Published online by Cambridge University Press:  30 October 2019

Jawad Ahmad
Jawad Ahmad*
Affiliation:
Jawad Ahmad is a Senior Associate (New York Lawyer) of Mayer Brown International LLP in London. The opinions and views expressed in this article do not reflect in any way those of Mayer Brown International LLP.
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Extract

On March 6, 2018, the Court of Justice of the European Union (CJEU) found in Slowakische Republik (Slovak Republic) v. Achmea B.V. that the arbitration agreement contained in the 1991 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (BIT) had an adverse effect on the autonomy of EU law and, thus, was incompatible with EU law. This important decision has ignited a debate on the compatibility of other arbitration agreements in both intra-EU bilateral investment treaties (intra-EU BITs) and in the Energy Charter Treaty (ECT) with EU law.

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 5 , October 2019 , pp. 1101 - 1113
Copyright
Copyright © 2019 by The American Society of International Law 

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References

ENDNOTES

1 Case C-284/16, Slowakische Republik (Slovak Republic) v. Achmea B.V., Mar. 6, 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62016CJ0284&from=EN [hereinafter Decision].

2 See Act No. 580/2004 Coll. and Act No. 581/2004 Coll. See also Case No. 2008-13, Achmea B.V. v. Slovak Republic, PCA, Final Award dated December 7, 2012, ¶¶ 85–89 (Perm. Ct. Arb. 2012) [hereinafter Award].

3 Act No. 522/2006 Coll., adopted on September 6, 2006, introduced a cap on the operating expenses of health insurance companies; Act No. 12/2007 Coll., adopted on December 12, 2006, introduced a ban on the use by health insurance companies of brokers to sell health insurance; Decree 504/2007, adopted on October 24, 2007, ended the ability of health insurance companies to contract freely with healthcare providers and imposed a requirement that the health insurance companies contract with thirty-four named state hospitals for the provision of facilities; Act No. 530/2007 Coll., adopted on October 25, 2007, introduced a requirement that all profits from health insurance be used for healthcare purposes; Act No. 581/2008 Coll., adopted on November 25, 2008, among other things, obliged health insurance companies to submit their budgets for scrutiny by the Government and amended the solvency requirements imposed on health insurance companies; and Act No. 192/2009 Coll., adopted on April 30, 2009, required that in the case of insolvency of an insurance company its portfolio must be transferred without payment to one of the two state insurance companies.

4 Achmea claimed for breaches of Articles 3(1), 3(2), 4, and 5 of the BIT.

5 Achmea B.V. v. The Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension dated October 26, 2010, ¶ 9 [hereinafter Award on Jurisdiction].

6 Id. ¶ 194.

7 See Decision of the Frankfurt Higher Regional Court dated May 10, 2012, available at https://www.italaw.com/sites/default/files/case-documents/ita0931.pdf.

8 Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010 O.J. (C83), 2012 O.J. (C326).

9 Decision, supra note 1, ¶ 23.

10 Case C-284/16, Slowakische Republik (Slovak Republic) v. Achmea B.V., Opinion of Advocate General Wathelet, ¶ 273, Sept. 19, 2017, http://curia.europa.eu/juris/document/document.jsf?text=&docid=194583&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1693885 [hereinafter Opinion].

11 Id. ¶¶ 44–45.

12 Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/05/20, https://www.italaw.com/cases/697.

13 Opinion, supra note 10, ¶ 43.

14 Decision, supra note 1, ¶ 35.

15 Id. ¶ 37.

16 Id. ¶ 41.

17 Id ¶¶ 39–42.

18 Id. ¶ 48.

19 Id. ¶¶ 43–45.

20 Id. ¶ 43.

21 Id. ¶¶ 45–49.

22 Id. ¶ 55.

23 Id. ¶ 59.

24 Tom Jones, Germany's Top Court Shows Obedience to Achmea, Global Arb. Rev. (Nov. 9, 2018), https://globalarbitrationreview.com/article/1176731/germany%E2%80%99s-top-court-shows-obedience-to-achmea.

25 Tom Jones, EU Countries to Cancel BITs Post-Achmea, Global Arb. Rev. (Jan. 17, 2019), https://globalarbitrationreview.com/article/1179337/eu-countries-to-cancel-bits-post-achmea