(Full Report available here)
Following recent developments in EU law concerning the validity of international investment agreements (IIAs) between the EU Member States, and primarily following the Court of Justice of the European Union’s (CJEU) recent ruling in the Slovak Republic v. Achmea case, there is a need for clarity regarding the status of IIAs between EU Member States and non-EU Member States.
In the 2018 Achmea ruling, the CJEU ruled that all intra-EU agreements with dispute settlement by arbitration conflict with Art. 344 TFEU, and therefore infringe on the autonomy of EU law and should be terminated. The CJEU revisited the subject the 2019 Opinion 1/17, concerning the Comprehensive and Economic Trade Agreement between Canada and the EU (CETA). The court concluded that contrary to the Achmea ruling, the arbitration mechanism in CETA does not raise the same issues of incompatibility with EU law. Specifically, the Court was certain that arbitration under CETA does not conflict with the autonomy of EU law as stated in the Achmea ruling.
The EU Commission and most EU Member States recently signed the Agreement for the Termination of Bilateral Investment Treaties Between the Member States of the European Union (May 5th, 2020), in which they agreed upon the formal termination of all intra-EU investment agreements. While the agreement does not explicitly refer to extra-EU agreements, the question of whether these developments in CJEU jurisprudence might affect extra-EU agreements must be considered. At first glance, it seems that there will be no effect in an extra-EU context, partially because the Achmea decision and the 2020 Termination Agreement specifically only mention intra-EU agreements. However, several issues raise the possibility that these recent developments could in fact have at least an indirect impact on extra-EU agreements as well. For instance:
The vague wording used in Achmea may allow for a wider application of the ruling;
The frequent jurisdictional objections raised by the EU and its Member States express the EU’s disapproval of the application of EU law by arbitral tribunals;
A non-binding communication previously issued by the EU regarding the decision’s applicability to the ECT hints at the EU’s concerns in areas that are not purely intra-EU.
As Achmea and the subsequent developments in EU law may have at least some indirect effects on extra-EU IIAs, there is a rising need to map some of the possible implications. The possible implications on extra-EU agreements resulting from the current legal uncertainty may include:
Challenges in future negotiations of extra-EU agreements that include an arbitration clause;
An increase in the frequency of jurisdictional objections raised by EU Member States that are a respondent to a claim settled by investment arbitration;
Issues of enforceability of arbitral tribunal awards against EU Member States.
If Achmea and the 2020 Termination Agreement are formally applied to extra-EU IIAs, the potential implications may include:
The absence of investment protection for EU investors in third countries;
A difference in bargaining power between the EU and third countries attempting to negotiate new or existing investment agreements;
Possible effects on multilateral investment treaties such as the ECT.
With the above potential implications and effect in mind, we offer mechanisms third countries may utilize to provide better protection for their investors. Some of these include:
Careful wording of the applicable law clause in order to limit the applicability of EU law;
Use of joint interpretive instruments, intended to bind tribunals considering a dispute to specific interpretations agreed upon by the contracting parties;
The benefits of seating arbitral tribunals outside of the EU legal system, in order to distance disputes from the influence of EU institutions and EU Member State Courts;
Utilizing sunset provisions;
Negotiate IIAs with the EU, as opposed to negotiations with individual Member States, in an attempt to provide the agreement with higher legitimacy in terms of EU law.
In conclusion, while the implications of recent developments in CJEU jurisprudence on extra-EU agreements may be unclear, there are several steps which third countries may consider in order to better protect their investors from the potential implications of recent developments in EU law. While none of the above suggestions provide a full solution, they may be able to provide additional certainty and of protection to investors investing under extra-EU IIAs.
Full Report available here