The Effects of the Achmea Judgment on Intra-EU BIT Claims, Law Firms, and Third-Party Funders

 

Executive Summary

 

This executive summary presents the key findings of the research on the effects of the Achmea judgment of the Court of Justice of the European Union on intra-EU investment arbitration. The findings speak to (i) the Achmea judgment’s effects on pending and recently concluded intra-EU cases and (ii) its reception by law firms and third-party funders.

 

Facts and Statistics

 

Section 1.1 of the Report lays down the statistical analysis of cases that are being affected by the Achmea judgment. As of 31 December 2018, the Achmea judgment appears to have directly or indirectly affected some 90 pending intra-EU cases as well as 17 concluded intra-EU cases. Accordingly, the judgment touches upon a quarter of the total number of pending public investor-state disputes with claims amounting an estimated total of EUR 35.1 billion. Among pending cases, the strong majority are before ICSID tribunals with the ECT arising as the most frequently invoked legal instrument. The claimants in these cases are predominantly from Western Europe, while respondents are typically Southern and Eastern European States. This shows the main stakeholders and varying interests in the judgment.

 

Section 1.1 of the Report factually summarises the 14 cases which contain significant developments regarding the Achmea judgment. These cases show that while the judgment is generally perceived to put an end to the intra-EU ISDS practice, the arbitral community takes steps to reduce its impact over the practice. A number of arbitral tribunals distinguish the Achmea judgment from ECT and/or ICSID claims. At the same time, the European Commission and the Member States actively present a strong case for the Achmea across the board. So far, such efforts are appreciated by the courts of the Member States of the European Union, in Sweden and Germany, resulting in setting aside or staying enforcement of the awards. However, the reception of enforcement attempts in the United States is still pending.

 

Section 1.2 of the Report provides information on the 5 new cases that have been initiated after the Achmea judgment. These cases show that despite the verdict in the Achmea judgment, new cases are still underway. However, in terms of their frequency, the number of cases has dropped by more than a half as compared to the same period before the Achmea judgment.   

 

Market Reaction

 

Section 2 of the Report focuses on the reaction of the top law firms and third-party funders to the Achmea judgment. The surveys, an interview, and field observations undertaken as part of this research show that the reception of the Achmea in the market has been somewhat mixed. The practitioners fully recognize the material importance of the judgment. However, they are also reluctant to perceive the judgment as an impediment against intra-EU investment arbitration under all circumstances. The law firms and third-party funders who contributed to this Report indicate that they would consider moving on with intra-EU claims when the underlying claims are based on the ECT and/or ICSID framework. The field observations made throughout three conferences also suggests the same. That said, the Achmea judgment clearly arises as a factor that will be considered before initiating intra-EU claims.

 

The Achmea judgment also bears upon potential company migration. A number of law firms that took part in the surveys indicated that they have advised their clients to restructure and benefit from extra-EU BITs. Others remarked that they may consider doing the same. At least one law firm publicly announced their approach with similar intentions through a public client memorandum. The Chairman of a Luxembourg-based energy company publicly declared their intention to move their headquarters during a recent conference if the Achmea judgment is not reversed. Therefore, subject to legal limitations, the multi-billion-dollar business interests affected by the Achmea judgment may result in the restructuring of investments.

 

 

Introduction

 

1. The Achmea judgment of the CJEU dated March 6, 2018 (Slovak Republic v. Achmea B.V., Case no. C-284/16) represents a highly anticipated decision by the EU’s highest court regarding the compatibility of dispute settlement provisions contained in intra-EU BITs with EU law. In this landmark decision, the CJEU determined that the arbitration clause contained in Article 8 of the Netherlands and Slovakia BIT is incompatible with EU law.

 

2. This Report provides an overview of the effects of the Achmea judgment as of 31 December 2018. It pertains to the Project assigned to the TradeLab members by the Ministry of Finance of the Slovak Republic
as of September 19, 2018 (Annex-I: The Project). 

 

3. The Project strives to provide answers to the following research questions:

 

a. Which new cases have been initiated under intra-EU BITs after the Achmea judgment?

b. What is the status of pending cases under intra-EU BITs after the Achmea judgment?

c. Whether third-party funders still fund intra-EU cases after the Achmea judgment?

d. Whether investors are being advised to move their seats after the Achmea judgment?

 

4. The findings related to the above questions are structured as follows. Section 1 provides a factual and statistical analysis of new and pending cases arising from intra-EU BITs. Section 2 presents a market analysis based on the results of surveys conducted with legal advisers and third-party funders in relation to the Achmea judgment. Finally, any supplementary information is presented as Annexes I-III to this Report.

 

The full report can be accessed here

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