ERDEM-NEWSLETTER-2018-metin

182 NEWSLETTER 2018 In another arbitration governed by ICSID rules, UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary , the tribunal has recently ruled that the Achmea judgment does not apply to the dispute stemming from the intra-EU BIT 12 . The tribunal conclud- ed that its jurisdiction arose from the ICSID treaty which has public international law context, therefore departs from the national context. Similarly, in another arbitration governed by ICSID rules, filed against Spain by Masdar Solar & Wind Cooperatief 13 , the tribunal explicitly underlined the non-applicability of the Achmea judgment to multilat- eral treaties such as ECT and ICSID 14 . The Achmea judgment is likely to influence the parties who seek ways to avoid the arbitral award ruled against them. Conclusion The CJEU has caused the very earth to be shaken in the arbitra- tion community with the highly disputed Achmea judgment, where it ruled that the arbitration clause in the 1991 Netherlands-Slovakia BIT has had an adverse effect on the primacy of EU law and is incompat- ible. The judgment has been criticized for being rendered under the political influence of the European Commission; whereas, it is likely to influence many while claiming intra-EU jurisdictional objection during the course of the forthcoming proceedings. Meanwhile, the number of arbitral tribunals rejecting the applicability of the Achmea reasoning in arbitrations that are governed by multilateral investment treaties, such as ICSID and ECT, are on the upswing. 53ad722353fa (Access date: October 2018). 12 UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary, ICSID Case No. ARB/13/35, https://www.italaw.com/sites/default/files/case- documents/italaw10075.pdf. For further details on the dispute: https://www. quinnemanuel.com/the-firm/our-notable-victories/victory-october-2018-icsid- arbitration-victory-first-award-rejecting-achmea-on-intra-eu-bit-case/ (Access date: October 2018). 13 Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, https://www.italaw.com/sites/default/files/case-documents/ital- aw9710.pdf (Access date: October 2018). 14 Jones, Tom : “ Post-Achmea Spanish solar award submitted for enforcement in US, ” https://globalarbitrationreview.com/article/1175145/post-achmea-spanish- solar-award-submitted-for-enforcement-in-us (Access date: October 2018).