The judgment of the Court of Justice of the European Union (CJEU) in Achmea continues to have a startling and wide impact, this time potentially rendering the dispute resolution provisions of the Energy Charter Treaty (ECT) incompatible with EU law, according to an Opinion rendered by Advocate General Maciej.
In 2019, I questioned (in an article entitled "Achmea and commercial arbitration" in the Global Arbitration Review) whether Achmea will have an adverse impact on international commercial arbitration. While the CJEU purported to exempt international commercial arbitration from the scope of its ruling in Achmea, I remain of the view that this distinction is highly doubtful, so far as it relates to disputes involving the interpretation and application of EU law.
It thus remains to be seen whether international commitments undertaken, and national measures adopted, by EU member states in the field of international commercial arbitration, which serve to remove disputes involving the interpretation and application of EU law from the jurisdiction of their own courts, will be held to breach their obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” under article 19(1) of the TEU.
In a non-binding opinion published today, advocate general Maciej Szpunar of Poland said the investor-state dispute settlement (ISDS) clause found in article 26 in the ECT is incompatible with maintaining a uniform interpretation of EU law as ECT tribunals are outside the ECJ’s jurisdiction.