EU-interna investeringsskyddsavtals (in)kompatibilitet med unionsrätten - Med fokus på skiljenämnders behörighet
Sammanfattning: Arbitration agreements contained in bilateral investment treaties between EU member states have been under the EU Commission’s critical review since the beginning of the twenty-first century. The Commission considers that these treaties conflict with the EU treaties, inter alia because they may lead arbitration tribunals to apply EU law outside the control of the European Court of Justice. In March 2018, the European Court of Justice ruled in the Achmea-case that arbitration agreements contained in bilateral investment treaties between EU member states may conflict with EU law if they mean that the arbitration tribunal can apply EU law. This means that arbitration tribunals based on an intra-EU BIT can be considered to not have jurisdiction due to the underlying arbitration agreement being invalid. This judgement may affect the application of the more than 190 intra-EU BITs currently in force. The purpose of this thesis is to describe how the structures of arbitration are designed regarding disputes arising from bilateral investment treaties between EU member states and to analyse the recent ruling of the European Court of Justice and clarify its possible consequences for future EU investment disputes. Bilateral investment treaties between EU member states provide an opportunity for investors to refer a dispute arising from such treaties to an arbitration tribunal. However, this possibility may, due to the Achmea-case, conflict with the EU treaties, which may mean that arbitration awards that have been based on such arbitration agreements may be set aside in national proceedings or that arbitration tribunals do not consider themselves to have jurisdiction over such disputes. Furthermore, there is a certain difference between arbitration proceedings initiated under the ICSID Convention and arbitration proceedings initiated either under other arbitration institutes or which are created ad hoc. Thus, since ICSID arbitration tribunals do not have a legal seat in a particular state, ICSID arbitration awards do not go through set aside proceedings in a particular state, as is the case for non-ICSID arbitration awards. A non-ICSID arbitration award based on an intra-EU BIT will therefore be more difficult for a winning party to enforce after the Achmea-case, as it is most likely to be set aside on the ground that it is incompatible with EU law. An ICSID arbitration award, on the other hand, does not go through the same set aside proceedings, which is why it would probably be easier to enforce such award. However, there will still be problems with the authorities responsible for recognising and enforcing ICSID arbitration awards. On the one hand, there is an obligation under international law to recognise and enforce ICSID arbitration awards without further consideration; on the other hand, the European Court of Justice has concluded that such arbitration awards can be contrary to EU law. The conclusion of the thesis is that the consequences of the Achmea-case will be problematic to handle for the national authorities and courts within the EU who must deal with these issues. However, it may be assumed that an arbitration award arising from an intra-EU BIT will be easier to recognise and enforce for the winning party if the dispute is initiated under the ICSID Convention.
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