Some Reflections on Achmea’s Broader Consequences for Investment Arbitration

In the Achmea case (judgment of 6 March 2018, case C-284/16), the Court of Justice applied its standing case law on the autonomy of the EU legal order to Investor-state Dispute Resolution (ISDS) and concluded that the ISDS mechanism at hand was contrary to EU law. Irrespective of whether the Court’s construction of autonomy is conceptually convincing, the principled elaborations on autonomy in Achmea, emphasized the relevance of the preliminary ruling procedure as the institutional backbone of the effectiveness of EU law. This institutional backbone, which allows for a constant dialogue between the Court of Justice and the national judiciary, played an important role in the Courts finding that EU law enjoys direct effect and primacy in van Gend en Loos and Costa v. ENEL (respectively, judgment of 5 February 1963, case 26/62 and judgment of 15 July 1964, case 6/64). In the eyes of the Court, it cannot be compromised by offering investors an alternative route of dispute settlement from which no possibility exists to ask preliminary questions. While other aspects of the ruling, that is the Court’s considerations on mutual trust, may apply specifically to the type of Intra-EU ISDS mechanisms in Achmea, the autonomy reasoning logically also applies to other forms of investment arbitration, such as the Investment Court System (ICS) in the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA) and the envisaged Multilateral Investment Court (MIC). The principled stand on autonomy, as the Court has presented it in a long list of cases, including in Achmea, amounts to a considerable, albeit not necessarily insurmountable obstacle to both Member States and the Union submitting to the jurisdiction of international courts and tribunals.