Justin Williams Quoted by Law360 on European Court of Justice Decision in Achmea and Intra-EU BIT Awards
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Akin Gump international arbitration partner Justin Williams was quoted by Law360 for its article “European Commission Sets Sights On All Intra-EU Claims,” on a European Court of Justice (ECJ) decision that held an arbitration clause in a Dutch-Slovak investment treaty to be incompatible with EU law.
The article notes that this decision favors the European Commission’s view regarding the incompatibility of intra-EU bilateral investment treaties (BITs) with EU law.
Williams said, “I think that there must now clearly be a view that the enforcement of intra-EU BIT awards starts to look really questionable in light of the Achmea decision.” He added that he expects investors’ appetite for bringing these claims will likely diminish.
Regarding a case involving an award issued against Spain in a case involving a Luxembourg renewable energy investor under the multilateral Energy Charter Treaty (ECT)—which, the article notes, a Swedish court is considering referring to the ECJ to see if Achmea invalidates the ECT’s arbitration clause—Williams said, “In terms of this political battle that we’re seeing play out in the EU around BITs, [the ECT debate] is a tougher one for the commission to justify because ... their predecessors were right there at the center of it. They deliberately intended to create this thing.”
On Achmea as a manifestation of a global backlash against investor-state arbitration, and the U.S. Mexico-Canada Agreement, which eliminates investor-state arbitration between the U.S. and Canada, he said, “Quite often the views that courts take, to some extent, reflect policy views ... and what [the Achmea decision] reflects is a broader trend amongst a number of important countries away from investor-state dispute settlement. Since Achmea, [the U.S.-Mexico-Canada Agreement] is the single biggest development on the policy front, and I think it shows that there is this move away from investor-state arbitration, and clearly the EU is in the vanguard of that.”
