For Whom the Bell Tolls: Any Hope Left for Investment Arbitration After Achmea?

On 6 March 2018, the European Court of Justice (ECJ) rendered its long-awaited judgment in Case C-284/16, better known as the Achmea decision. This judgment addressed the compatibility of the bilateral investment treaty concluded between the Netherlands and the Slovak Republic with European Union (EU) law. The ECJ ultimately held that the treaty’s dispute settlement provisions infringe EU law. Although the ECJ only addressed this particular bilateral investment treaty, the judgment is widely considered to be a landmark decision with far-reaching implications. The decision sparked a vivid debate amongst scholars, politicians and practitioners as to the impact of the judgment, focussing in particular on whether Achmea puts an End to (intra-EU) Investor-state dispute settlement (ISDS) as a whole. This Chapter outlines the factual background of the Achmea decision and analyses its key findings. It then particularly explores the potential impact of the judgment on the status of other intra-EU bilateral investment treaties as well as the enforcement of awards that have already been rendered in ISDS proceedings. The Chapter further discusses the highly controversial question of the Achmea decision’s impact on bilateral investment treaties between EU Member States and non-EU States as well as its impact on investment treaties the EU itself is a party to, such as the Energy Charter Treaty and the EU-Canada Comprehensive Economic and Trade Agreement. Finally, this Chapter also addresses the potential impact of the Achmea decision on commercial arbitration. This Chapter reflects the legal status and scholarly discussion in early 2019. To the extent necessary, further updates have been included regarding the most significant recent developments. © 2020, Springer Nature Switzerland AG.