On March 6, 2018, the Court of Justice of the European Union (CJEU) published its preliminary ruling in Slovak Republic v. Achmea BV (Ruling), which held that the application of the investor-state dispute settlement provision at Article 8 of the Netherlands-Slovakia bilateral investment treaty (BIT) was incompatible with EU law.
See our analysis of the Ruling here. In that article, we considered some of the questions raised by the Ruling, as well as the possible effects on arbitration under intra-EU investment treaties. While the position remains unclear, there have since been a number of developments that could go some way to providing clarity in the future.
ICSID arbitrations under intra-EU BITs
The constitution of the tribunal in Addiko Bank AG and Addiko Bank d.d. v. Republic of Croatia (ICSID Case No. ARB/17/37)
The tribunal in Addiko v. Croatia was fully constituted on March 19, 2018 with ICSID ’s appointment of Jean Kalicki as presiding arbitrator.1 As we understand it, this is one of a number of claims under the Austria-Croatia BIT brought by Austrian banks against Croatia following the enactment of legislation that converted Swiss franc-denominated mortgages and other loans into euros.2 This is also the first ICSID tribunal to be constituted to hear claims arising under an intra-EU BIT following the Ruling. In the likely event that Croatia disputes the tribunal’s jurisdiction in reliance on the Ruling, the tribunal’s decision may give guidance as to the likely significance and effect to be attributed to the Ruling (if any) by ICSID tribunals hearing claims arising under intra-EU BITs.