INTRA-E.U. BIT ARBITRATIONS DECLARED INCOMPATIBLE WITH EU LAW JUDGMENT RENDERED IN C-284/16 - SLOWAKISCHE REPUBLIK V ACHMEA BV.

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1 INTRA-E.U. BIT ARBITRATIONS DECLARED INCOMPATIBLE WITH EU LAW JUDGMENT RENDERED IN C-284/16 - SLOWAKISCHE REPUBLIK V ACHMEA BV. 1. Today, the Court of Justice of the European Union ( CJEU ) delivered its muchanticipated Judgment in Case C-284/16 - Slowakische Republik v Achmea BV. It decided not to follow the Advocate General s Opinion and has declared that intra-eu BIT arbitrations are incompatible with EU law. The consequences of this Judgment may be far-reaching, as discussed below. BACKGROUND TO THE CASE AND REQUEST FOR PRELIMINARY RULING BY THE BUNDESGERICHTSHOF The Arbitration Proceedings 2. Achmea (formerly Eureko) is a financial services group that offers a range of insurance products internationally, including health insurance, life and non-life insurance, pension products, asset management and banking. It operated in the Slovak Republic through two companies, including Union Healthcare. Achmea had claimed that various legislative measures introduced by the Slovak Republic after a change in government in July 2006 constituted a systematic reversal of the 2004 liberalisation of the Slovak health insurance market that had prompted Eureko to invest in the Slovak Republic s health insurance sector. Achmea alleged that these actions effectively destroyed the value of Eureko s investment, thereby breaching various provisions of the BIT between The Netherlands and the Dutch-Czech and Slovak Republic. It commenced an arbitration under the UNCITRAL rules, pursuant to the arbitration clause (Article 8) of The Netherlands and the Dutch-Czech and Slovak Republic. 3. A preliminary phase of the proceedings dealt exclusively with the Slovak Republic s jurisdictional objection based on its membership of the EU the ( Intra-EU Jurisdictional Objection ). In essence, the Slovak Republic argued that: a. As a matter of public international law, pursuant to Article 59 ( Termination or suspension of the operation of a treaty implied by conclusion of a later treaty ) of

2 the Vienna Convention on the Law of Treaties ( VCLT ), the BIT was terminated upon the Slovak Republic s accession to the EC Treaty; b. As a matter of public international law, pursuant to Article 30 ( Application of successive treaties to the same subject-matter ) of the VCLT, since the Slovak Republic s accession to the EC Treaty, the arbitration clause in the BIT could no longer be considered applicable; c. As a matter of EU law, which forms part of the law of the Slovak Republic (applicable by this Tribunal pursuant to Article 8(6) of the BIT), the Tribunal lacked jurisdiction because the arbitration clause is incompatible with the EC Treaty, the principle of autonomy of EU law, and the principle of supremacy of EU law; d. As a matter of German law (the law of the place of arbitration), the Tribunal lacked jurisdiction because the dispute was not arbitrable. 4. The European Commission had intervened in the preliminary phase in support of the Slovak Republic s jurisdictional objection. Its core arguments, for present purposes, were that: a. There was a serious potential for discrimination between EU investors from different Member States, which is incompatible with EU law. This was because some investors are covered by a BIT and granted the opportunity to resort to investor-state arbitration while others are not the availability of a choice of dispute resolution procedures gives some investors an advantage over investors from other Member States, and thus constitutes forbidden discrimination against those other EU nationals ; 1 b. Granting the opportunity for arbitration to all investors 2 would inevitably promote competing judicial and arbitral mechanisms, increase forum shopping by litigations and contribute to the risk of further fragmentation of international law. 3 It explained that c ontinued resort to outside dispute settlement mechanisms by EU subjects based on intra-eu BITS also reveals mistrust of EU Member States. This has no place in the current post-enlargement context, which is rooted in mutual trust between Member States and founded on the development of a common favourable investment environment. Mutual trust in the administration of justice in the European Union is one of the principles regarded as necessary by the European Court of Justice for the sound operation of the internal market On 26 October 2010, the Tribunal issued its Award on Jurisdiction, Arbitrability and Suspension dismissing the Intra-EU Jurisdictional Objection, holding that the Tribunal had jurisdiction to decide the dispute, and declining to suspend the proceedings until the Which was suggested as a solution to the issue of discrimination: see Award on Jurisdiction, Arbitrability and Suspension dismissing the Intra-EU Jurisdictional Objection,

3 European Commission and/or the European Court of Justice (the ECJ ) came to a decision on EU law aspects of related alleged infringement proceedings. The tribunal found, inter alia, that: a. that EU law did not provide substantive rights for investors that extend as far as those provided by the BIT; 5 the provisions of the BIT could not be said to be incompatible with EU law and there was no reason why those rights could not be fulfilled and upheld in addition to the rights protected by EU law; 6 a consensual arbitration such as that provided by Article 8 of the BIT, under well-established arbitration rules adopted by the United Nations, in a neutral place and with a neutral appointing authority, cannot be equated simply with the legal right to bring legal proceedings before the national courts of the host state; 7 b. the BIT provisions had not been displaced by EU law as a result of the principle set out in Article 59 of the Vienna Convention on the Law of Treaties. The consequence is that in any particular case, investors protected by the BIT may have wider rights than those given under the substantive provisions of EU law to investors of (other) EU Member States. It then stated that: a ffording such wider protection to those investors while not affording it to investors of other EU States may violate EU law prohibitions on discrimination. But that is not a reason for cancelling Claimant s wider rights under the BIT. More significantly, it is still less a reason for treating the Parties consent to these arbitration proceedings as invalid or otherwise ineffective, particularly where the first stage of such consent pre-dated the relevant EU Treaties, the second stage pre-dated the Lisbon Treaty, and Claimant is an EU investor ; 8 c. there was no incompatibility (for the purpose of Article 30(3) of the VCLT) in circumstances where an obligation under the BIT could be fulfilled by the Slovak Republic without violating EU law. The only manner in which Article 30 could deprive the tribunal of jurisdiction based on Article 8 of the BIT would be if Article 8 of the BIT were itself incompatible with EU law. However, there is no rule of EU law that prohibits investor-state arbitration ; 9 d. the tribunal could consider and apply EU law if required, both as a matter of international law and as a matter of German law; In a Final Award rendered on 7 December 2012, a tribunal constituted under the UNCITRAL Rules and the BIT between The Netherlands and the Dutch-Czech and

4 Slovak Republic and composed of Professors Vaughan Lowe and Albert van den Berg, and Mr V.V. Veeder found that the Slovak Republic had breached the fair and equitable treatment and free transfer of payment provisions of the BIT. It ordered the Slovak Republic to pay Achmea 22.1 million (net of taxes), plus interest and almost 3 million in costs. Set-aside proceedings before the German Courts and the request for a preliminary ruling 7. The Slovak Republic applied to the Higher Regional Court of Frankfurt am Main to set aside the Final Award. The Higher Regional Court refused to set aside the award on 18 December The Slovak Republic appealed the decision to the Bundesgerichtshof (German Federal Court of Justice). 8. On 23 May 2016, the Bundesgerichtshof requested that the CJEU issue a preliminary ruling on the compatibility of arbitration agreements contained in intra-eu BITs with EU law, in particular Articles 344, 267 and 18 of the Treaty on the Functioning of the European Union ( TFEU ). By way of reminder: a. Article 344 TFEU provides that Member States undertake not to submit a dispute concerning the interpretation or application of the [EU] Treaties to any method of settlement other than those provided for therein ; b. The first to third paragraphs of Article 267 TFEU provide that: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. c. Article 18 TFEU provides that within the scope of application of the Treaties, and without prejudice to any special provisions contained, any discrimination on grounds of nationality shall be prohibited any discrimination on grounds of nationality.

5 9. The questions put forward by the Bundesgerichtshof were: 11 Does Article 344 TFEU preclude the application of a provision in a bilateral investment protection agreement between Member States of the European Union (a so-called BIT internal to the European Union) under which an investor of a contracting State, in the event of a dispute concerning investments in the other contracting State, may bring proceedings against the latter State before an arbitration tribunal, where the investment protection agreement was concluded before one of the contracting States acceded to the European Union but the arbitration proceedings are not to be brought until after that date? If Question 1 is to be answered in the negative: Does Article 267 TFEU preclude the application of such a provision? If Questions 1 and 2 are to be answered in the negative: Does the first paragraph of Article 18 TFEU preclude the application of such a provision under the circumstances described in Question 1? 10. In making the reference, the Bundesgerichtshof expressed the view that none of the provisions of the TFEU were an obstacle to the arbitration between Achmea and the Slovak Republic under the BIT. ADVOCATE GENERAL WATHELET S OPINION 11. On 19 September 2017, Advocate General Wathelet delivered his Opinion in this case on this thorny issue of fundamental importance. 12 Advocate General Wathelet addressed the questions referred by the Bundesgerichtshof in reverse order. Compatibility with Article 18 TFEU 12. Advocate General Wathelet expressed the view that there is no discrimination prohibited by EU law He referred to the judgment of 5 July 2005, D. (C-376/03, EU:C:2005:424) which concerned The Netherlands authorities refusal to grant a wealth tax allowance to a German national who had invested in real property in the Netherlands. The Court had found that the fact that [the] rights and obligations [created by the Netherlands-Belgium Double Taxation Convention] apply only to persons resident in one of the two Contracting Member States is an inherent consequence of bilateral double taxation conventions. It follows that a taxable person resident in Belgium is not in the same 11 Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 23 May 2016 Slovak Republic v Achmea BV (Case C-284/16), available at ode=req&dir=&occ=first&part=1&cid= Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, 65.

6 situation as a taxable person resident outside Belgium so far as concerns wealth tax on real property situated in the Netherlands. 14. Advocate General Wathelet considered that it was clear from that judgment not only that the FEU Treaty does not contain a most favoured nation (MFN) clause like the one contained in that BIT in Article 3(2), but also that there is no discrimination where a Member State does not afford the nationals of another Member State the treatment which it affords, by convention, to the nationals of a third Member State. 15. He went on to state that the fact that the reciprocal rights and obligations created by the BIT apply only to investors from one of the two Contracting Member States was a consequence inherent in the bilateral nature of BITs. It followed that a non-netherlands investor was not in the same situation as a Netherlands investor so far as an investment made in Slovakia was concerned. 14 Compatibility with Article 267 TFEU 16. Advocate General Wathelet considered that an arbitral tribunal constituted in accordance with Article 8 of the BIT was a court or tribunal within the meaning of Article 267 TFEU, common to two Member States, namely the Kingdom of the Netherlands and the Slovak Republic, and was therefore permitted to request the Court to give a preliminary ruling. That automatically meant that there was no incompatibility with Article 344 TFEU (which formed the subject matter of the first question) He referred to settled case-law in support of the proposition that, in order for a judicial body to be a court or tribunal for the purposes of Article 267 TFEU, it is necessary to take a number of factors into account, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In addition, a case [must be] pending before it and... it [must be] called upon to give judgment in proceedings intended to lead to a decision of a judicial nature The Advocate General considered that arbitral tribunals met those criteria. Compatibility with Article 344 TFEU 19. It followed from the Advocate General s conclusion on Article 267 that there is no incompatibility with Article 344 TFEU. 17 However, the Advocate General mooted that i f, however, the Court should find that the arbitral tribunals constituted in accordance with Article 8 of the BIT are not courts or tribunals of the Member States within the meaning of Article 267 TFEU, it would still be necessary to consider whether Article 344 TFEU precludes the application of Article 8 of the BIT and, if appropriate, 14 Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, 86 footnotes omitted. 17 Opinion of Advocate General Wathelet in Case C-284/16 Slowakische Republik v Achmea BV, 85.

7 whether the latter provision is incompatible with the allocation of powers fixed by the EU and FEU Treaties and the autonomy of the EU legal system. In that context, he posited three analyses in answer to the following three questions: a. Does a dispute between an investor and a Member State, such as that referred to in Article 8 of the BIT, come under Article 344 TFEU? b. Does the subject matter of such a dispute allow it to be characterised as a dispute concerning the interpretation [and] the application of the Treaties within the meaning of Article 344 TFEU? c. Does the BIT, having regard to its purpose, have the effect of undermining the allocation of powers determined by the EU and FEU Treaties and, accordingly, the autonomy of the EU legal system? 20. The Advocate General s answer to all three questions was negative. THE CJEU S JUDGMENT OF 6 MARCH On 6 March 2018, the CJEU delivered its long-awaited Judgment. 18 Compatibility with Articles 267 and 344 TFEU 22. The CJEU dealt with the first and second questions referred to it together. The Court noted that EU jurisprudence clearly indicated that an international treaty could not affect the order of competences fixed by the European treaties, and, in particular, the autonomy of the EU s judicial system. 19 EU law rests upon the fundamental premise that each Member State shares a series of communal values upon which the Union is founded. To guarantee the preservation of these values and the autonomy of the juridical order the EU, the European Treaties have instituted a jurisdictional system designed to ensure a coherent and unified interpretation of EU law. 23. First, the CJEU considered that a tribunal established under Article 8 of the BIT could be called upon to interpret, and even apply, EU law (including fundamental freedoms provided under EU law). 20 Second, it considered that a tribunal established under Article 8 of the BIT could not be deemed to be a court or tribunal of a Member State for the purpose of Article 267 TFEU: 21 the tribunal in the present case did not form part of the judicial system of either The Netherlands or the Slovak Republic. Given the same, an arbitral tribunal established under Article 8 was not able to refer questions to the CJEU for a preliminary ruling. 18 Available in French at mode=req&dir=&occ=first&part=1&cid= Ibid, Ibid, Ibid, 46.

8 24. Third, the CJEU considered that a decision rendered by such an arbitral tribunal was not subjected to sufficient control of a Member State s courts such as to ensure that questions of EU law that the tribunal might rule on could, eventually, be submitted to the CJEU by way of preliminary reference. The CJEU distinguished the annulment process of investment-treaty arbitrations to that of commercial arbitrations on the basis that while commercial arbitration was founded on party autonomy, investment-treaty arbitration was based on treaties by which member States consent to remove disputes (which may involve interpreting issues of EU law) from the jurisdiction of their own courts in favour of arbitral tribunals. 22 It considered that in doing so, Member States parties to BITs have established a dispute resolution mechanism for investors and Member States which, notwithstanding the fact that the dispute could give rise to issues of interpretation of EU law, may preclude such disputes from being decided in a manner which guaranteed the full effectiveness of EU law This, and the fact that such BITs were concluded not by the EU itself but by its Member States, rendered Article 8 of the BIT incompatible with articles 267 and 344 TFEU. 24 Compatibility with Article 18 TFEU 26. As a result of its conclusions in relation to Articles 267 and 344 TFEU, the CJEU considered that there was no need to respond to the third question that had been referred to it. SOME THOUGHTS ON THE CONSEQUENCES OF THE JUDGMENT 27. The Judgment will send shock waves around the arbitral community. The CJEU decided not to follow Advocate General Wathelet s Opinion and has dealt a real blow to intra-eu BITs arbitrations. 28. The consequence of this Judgment on intra-eu BIT arbitrations will play out in three principal fora: a. First, before investment tribunals established under intra-eu BITs. b. Second, before the courts of EU Member States called upon to decide challenges or deal with enforcement proceedings. c. Finally, before the courts of non-eu states called upon to decide challenges or deal with enforcement proceedings. Investment tribunals established under intra-eu BITs 29. It is difficult to predict with any degree of certainty how investment tribunals will react to this Judgment. Numerous tribunals have already been called upon to decide upon 22 Ibid, Ibid, Ibid,

9 questions of compatibility with the TFEU of an intra-eu BIT or a multilateral investment treaty (such as the ECT). 25 Arbitral tribunals have systematically rejected the argument (often made by the Commission as an intervener) that intra-eu BITs are incompatible with the TFEU Now, faced with a final Judgment by the European Union s highest court, it is difficult to see how such a position can be maintained. It may be that, in certain cases, tribunals identify specific circumstances which could lead to them distinguishing the circumstances in Achmea from the case before them; further or alternatively, it may be that some tribunals take the view that, as a matter of international law, their jurisdiction derives from the relevant BIT and they are duty-bound to assume competence to deal with the dispute, without regard to what happens after an award is rendered as a result of the Judgment. However, given the manner in which the Judgment was couched and therefore the likely breadth of its application, both those scenarios seem unlikely, and may not survive scrutiny before domestic courts. The Courts of EU Member States 31. Perhaps most worrying, from an investor s perspective, is how Courts of EU Member States will react. What should a court of a Member State do when faced with an arbitral award rendered under an intra-eu BIT, which it is bound to enforce by virtue of the Member State s obligations under an international convention (in particular, the Washington Convention), but also prohibited from enforcing by virtue of the Member State s obligations under E.U. law? 32. Courts of member States are subject to various obligations under the European Treaties to cooperate with EU institutions. Thus the sincere cooperation obligation under Art. 25 Perhaps the most significant cases are Eastern Sugar B.V. v Czech Republic (UNCITRAL) (Stockholm Chamber of Commerce (SCC) Case No 088/2004), Partial Award of 27 March 2007; Rupert Joseph Binder v Czech Republic (UNCITRAL) Award on Jurisdiction of 6 June 2007; Jan Oostergetel & Theodora Laurentius v Slovak Republic (UNCITRAL) Decision on Jurisdiction of 30 April 2010; AES Summit Generation Limited & AES-Tisza Erömü Kft v Hungary (International Centre for Settlement of Investment Disputes (ICSID) No ARB/07/22) Award of 23 September 2010; Achmea B.V. (formerly known as Eureko B.V.) v Slovak Republic (UNCITRAL) (PCA Case No ) Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010 and Final Award of 7 December 2012; European American Investment Bank AG v Slovak Republic (UNCITRAL) (PCA Case No ) Award on Jurisdiction of 22 October 2012; Electrabel S.A. v Hungary (ICSID Case No ARB/07/19) Decision on Jurisdiction, Applicable Law and Liability of 30 November 2012 and Award of 25 November 2015; Charanne B.V. and Construction Investments S.à.r.l. v Kingdom of Spain (SCC Case No 062/2012) Final Award of 21 January 2016; RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. v Kingdom of Spain (ICSID Case No ARB/13/30) Decision on Jurisdiction of 6 June 2016; Isolux Infrastructure Netherlands B.V.v Kingdom of Spain (SCC Case V 2013/153) Award of 12 July 2016; WNC Factoring Ltd v Czech Republic (UNCITRAL) (PCA Case No ) Award of 22 February 2017; Anglia Auto Accessories Limited v Czech Republic (SCC Case V 2014/181) Final Award of 10 March 2017; I.P. Busta and J.P. Busta v Czech Republic (SCC Case V 2015/014) Final Award of 10 March 2017; and Eiser Infrastructure Limited and Energía Solar Luxembourg S.à.r.l. v Kingdom of Spain (ICSID Case No ARB/13/36) Award of 4 May See e.g. Achmea B.V. v. The Slovak Republic, UNCITRAL PCA Case No , Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010.

10 4(3) TEU provides that the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties Against this, the New York Convention provides limited grounds for setting aside or resisting recognition and enforcement of an arbitral award. The Washington Convention no such grounds and provides, at Article 54, that e ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. 34. This conflict of obligations is illustrated in the High Court proceedings of Micula v Romania, 28 which involved enforcement proceedings of an Award rendered under the Sweden-Romania BIT, in circumstances where the European Commission had found that implementation or execution of the Award by Romania (including payment) would constitute new incompatible State aid and prohibited Romania from making any payment under the Award to the Claimants and required Romania to recover any incompatible aid already paid out. 29 In that case, Blair J concluded that he could grant a stay of the application to set aside a registration order and enforcement proceedings. He reasoned that: This court cannot therefore proceed to enforce the judgment consequent on registration of the Award in circumstances in which the Commission has prohibited Romania from making any payment under the Award to the claimants because in doing so, the court would, in effect, be acting unlawfully. This does not (in the court s view) create a conflict with the international obligations of the UK as contained in the 1966 Arbitration Act implementing the ICSID Convention in UK law, because a purely domestic judgment would be subject to the same limitation Regardless of whether that reasoning is correct, it now seems clear that courts of an EU Member State will be unable to enforce an arbitral decision rendered pursuant to an intra- EU BIT, in circumstances such as those in the Achmea case. 31 The Courts of non-eu Member States 27 And further that t he Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives. 28 Micula v Romania [2017] EWHC 31 (Comm). 29 Commission Decision (EU) 2015/1470 of 30 March 2015 on State Aid SA Micula v Romania [2017] EWHC 31 (Comm), at Though the question remains as to whether proceedings commenced, or an award rendered, prior to accession, should be enforced, in light of Article 351 TEU which provides that t he rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. Questions also remain as to the scope of application of this decision (and in particular, whether ICSID awards will be treated differently, or whether the Judgment will be found to cover arbitrations under the ECT too).

11 36. Non-EU states are obviously not bound to cooperate with EU institutions. Courts faced with challenges or enforcement of awards rendered under intra-eu BITs will not have to grapple with the obligations discussed above. However, award debtors (and, indeed, the Commission) will doubtless continue to argue that challenges should be successful or enforcement should be refused on the basis that intra-eu BIT arbitrations have been held to be incompatible with EU Treaties by the EU s highest court. Here, principles of comity are likely to come into play. 37. In Micula, recognition and/or enforcement proceedings were brought in the United States, pursuant to the ICSID Convention and corresponding provisions in domestic law. The Commission intervened in the enforcement proceedings too, arguing that recognition and enforcement of the Micula award should be refused on the basis of the doctrine of international comity, the act of state doctrine, and the foreign sovereign compulsion doctrine Such arguments have so far been rejected by the US Courts, but they have not yet faced a situation in which the BIT arbitration which gave rise to the award they are asked to enforce has been held to be incompatible with EU Treaties by the EU s highest court. This will likely carry more weight. A court s approach to enforcement will also likely depend on whether the court of a non-eu state is being asked to enforce an award under the New York Convention, where the grounds for setting aside include a public policy ground, or the Washington Convention, which does not. Note by Matthieu Gregoire 4 New Square 6 th March at p.12.