ERDEM-NEWSLETTER-2018-metin

181 ARBITRATION LAW The Impact of the Achmea Judgment The judgment was surprising with its contrast to the recommen- dation of the Advocate General of the CJEU 7 and has been criticized by being result-oriented given under the political influence of the Eu- ropean Commission, encouraging the member states to terminate the intra-EU BITs 8 . Although the CJEU judgment has caused a long-lasting debate in the arbitration community, its’ impact is likely to be limited since it ap- plies to neither the commercial 9 nor the disputes governed by Interna- tional Centre for Settlement of the Investment Disputes (“ICSID”) rules. Post-Achmea Awards While scholars and practitioners continue assessing the possible outcomes of the Achmea judgment, the number of arbitral awards de- clining its applicability has been rising. In Vattenfall AB and others v. Federal Republic of Germany, governed by the Energy Charter Treaty (“ECT”), the tribunal rejected the jurisdiction objection based upon the Achmea judgment. The tribunal reasoned in its “Decision on the Achmea Issue” 10 dated 31 August 2018 that the Achmea judgment cov- ers intra-EU BITs; whereas, ECT is a multilateral investment treaty to which the EU is a member. Most notably, the Tribunal emphasized that EU law has no superiority over international law. It also emphasized that the Achmea judgment endangers the uniform interpretation of the ECT and as per Article 16 precluding conflicts of the treaties, more favour- able rights granted under the ECT to investors cannot be undermined 11 . 7 The opinion of the Advocate General of the CJEU, https://eur-lex.europa.eu/le- gal-content/EN/TXT/PDF/?uri=CELEX:62016CC0284&from=EN (Access date: October 2018). 8 Pinsolle, Philippe; Michou, Isabelle : “ Arbitration: The Achmea v Slovakia Judgment of the CJEU, is it really the end of Intra-EU Investment Treaties?” https://www.quinnemanuel.com/media/1418711/the-achmea-judgement-ending- intra-eu-investment-treaties.pdf (Access date: October 2018). 9 Under §§54-55 of its judgment, the CJEU explicitly differentiates the commercial arbitration proceedings from disputes arising out of the intra-EU BITs. 10 Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12, the Decision on the Achmea issue, https://www.italaw.com/sites/de- fault/files/case-documents/italaw9916.pdf (Access date: October 2018). 11 Risse, Joerg; Gremminger, Nicolas : “Vattenfall-Decision Mitigates Achmea-Ef - fect, ” https://www.lexology.com/library/detail.aspx?g=0b7d71a2-ce05-4528-b915-