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The Downfall of Investment Treaty Arbitration and Possible Future Developments

  • Poland
  • International arbitration

13-05-2019

The compatibility of investment protection treaties with European Union law has been a controversial issue for quite some time. The decision of the Court of Justice of the European Union (CJEU) in Achmea (formerly Eureko) v Slovakia clarified the issue and raised a number of concerns as regards the future of intra-EU investment protection treaties. With the recently issued Political Declaration, Member States of the EU inform investment arbitration tribunals about the legal implications of the CJEU’s Decision and commit to undertake appropriate actions. The decision of the CJEU and the Declaration of Member States demonstrate that investor-state dispute settlement (ISDS) clauses in intra-EU bilateral investment treaties (BITs) are incompatible with EU law and, by reason of that, the settlement of disputes between investors and EU Member States through investment treaty arbitration may no longer be possible.

The article co-authored by Krzysztof Wierzbowski (head of real estate and infrastructure) and Aleksander Szostak (paralegal / M&A, RE) aims to shed light on the potential implications of the CJEU’s Decision and Political Declaration on foreign investors engaging in the European market and the foreign direct investment protection system in the EU. Read the full version >

This article first appeared in the May 2019 issue of Dispute Resolution International (Vol 13, No 1), and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

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