Professor Panos Koutrakos – LexisPSL – Intra-EU investment arbitration proceedings—the ECJ pronounces further on the autonomy of EU law (Poland v PL Holdings Sàrl)

05 Nov 2021

Arbitration analysis: A recent judgment of the Grand Chamber of the Court of Justice of the European Union (ECJ) held that in cases where an arbitration clause in an intra- EU Bilateral Investment Treaty (BIT) is contrary to EU law, domestic Member State law may not allow a Member State and a private party to conclude an ad hoc arbitration agreement with the same content and submit that dispute to an arbitral body with the same characteristics as that envisaged under the BIT, extending the principles established in Achmea v Slovakia (Achmea). The judgment confirms the significance of the Achmea decision and buttresses it so that it may not be circumvented by means of Member State domestic law. It also builds on the approach illustrated in another recent Grand Chamber judgment (Moldova v Komstroy) and makes it clear that Member State domestic courts are under a duty to set aside an arbitration award made on the basis of an arbitration agreement that would violate the Achmea principle. Given the narrow legal context of the case, the judgment also raises questions about the scope of the applicability of the above principle.

The full article written by Professor Panos Koutrakos, was first published by Lexis®PSL on 2 November 2021, and can be read here.