Article 26 ECT and Intra-EU Disputes-the Case against an Expansive Reading of Achmea

• Autores: Alan Dashwood
• Localización: European law review, ISSN 0307-5400, Nº 4, 2021, págs. 415-434
• Idioma: inglés
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• Resumen

  • This article sets out the case against the expansive reading of the judgment in Achmea, that calls into question the compatibility with EU law of recourse to the arbitration mechanism of art.26 ECT in disputes between an investor from an EU Member State and another Member State where the investment has been made. It is argued that the proponents of such a reading, notably the Commission and certain Advocates General, have failed to pay sufficiently close attention to the reasoning in the judgment. If full value is given to the Court's carefully chosen language, it can be seen that the key objections found against the arbitration mechanism of the BIT in Achmea-that a tribunal situated outside the EU judicial system was given jurisdiction to interpret or apply EU law, and that this jurisdiction had been created by an international agreement between EU Member States-do not to apply to arbitration under art.26 ECT. Assistance in reaching that conclusion can obtained from the subsequent Opinion 1/17 of the Court of Justice, concerning the CETA.