The International Arbitration Review: European Union
After a rather turbulent 2018, which saw the issuance of the much-anticipated Achmea judgment by the Court of Justice of the European Union (CJEU), 2019 saw a continuation of the developments initiated in previous years. The decision in Micula v. Commission gave the General Court of the European Union (GC) the opportunity to address pending questions regarding the relationship between European Union law and investment treaties. That relationship was further clarified in the agreement for the termination of bilateral investment treaties (BITs) between Member States. Simultaneously, on the extra-EU BIT side, the EU pursued its active trade policy, with two new agreements coming to fruition in 2019.
The year in review
i Developments affecting investment protection treaties of Member States: extra-EU bilateral investment treaties
In line with the EU's ambition, as set out in Regulation (EU) 1219/2012 (Regulation), to replace progressively bilateral investment agreements concluded by Member States with Union-level investment agreements, the EU negotiated several free trade agreements (FTAs) with third countries. Since the adoption of this Regulation, the EU has concluded the negotiations of four investment protection agreements, although none of them has yet entered into force. Upon their entry into force, these four agreements will replace no less than 57 investment agreements concluded by Member States.2
The EU concluded the first of these new-generation agreements with Singapore on 17 October 2014 (EUSFTA).3 Following an opinion rendered by the CJEU, siting in full court in May 2017,4 that the agreement contained both provisions within the exclusive competence of the EU as well as provisions shared with the EU Member States, the final text of the EUSFTA was split into two distinct agreements: the EU–Singapore FTA and the EU–Singapore investment protection agreement. The EU and Singapore signed these two agreements on 19 October 2018, and the European Parliament approved them on 13 February 2019.5 The EU–Singapore FTA entered into force on 21 November 2019.6
On 4 August 2015, the EU and Vietnam reached an agreement in principle on a comprehensive EU–Vietnam trade and investment agreement.7 On 30 June 2019, both the EU and Vietnam signed the agreement. After obtaining the European Parliament's consent in February 2020, the Council of the EU (Council) concluded the agreement on 30 March 2020. Vietnam is expected to ratify the agreement in the summer of 2020.8
On 15 February 2017, the European Parliament voted for the adoption of the Canada–EU Comprehensive Economic and Trade agreement (CETA).9 CETA entered into force provisionally on 21 September 2017.10 This was possible because the Commission proposed CETA as a 'mixed agreement' to 'allow for a swift signature and provisional application' of those CETA chapters that fall within the EU's exclusive competence.11 As a mixed agreement, to enter into force, CETA needs to be ratified by each Member State. As of November 2019, 13 Member States have ratified it.12
On 28 April 2020, the EU concluded its most recent agreement, with Mexico. The agreement is unprecedented, as it is the first time that the EU has agreed with a Latin American country on issues concerning investment protection.13
In 2019, the EU was very active in negotiating investment protection agreements that will come into force over the course of the following years. Investment negotiations are currently ongoing with China, Japan, Chile, Indonesia and Tunisia.14 In addition to investment protection, the EU has also negotiated several trade agreements, including since June 2019 with the Mercosur countries.15 Following Brexit, the EU has also started to negotiate a trade agreement with the UK, expecting to conclude it by December 2020 at the latest. In May 2020, the UK released the working text of the agreement, which is remarkable for its absence of an investor–state dispute settlement mechanism (ISDS) or an investment court such as in CETA.16
The CETA and the EU–Vietnam FTA each provide for a novel investment tribunal system. Each trade committee under the respective treaties will set up a permanent investment tribunal. This approach is consistent with the Commission's concept paper from 2015 entitled 'Investment in TTIP and Beyond – the Path for Reform'. The Paper suggests the creation of a permanent multilateral arbitration court, with a permanent list of arbitrators and the possibility of bilateral appeals of arbitration awards.17 The main elements of the future investment court system have been set out in CETA and the EU–Vietnam FTA.18
Significantly however, on 6 September 2017, Belgium filed an application to the CJEU for an opinion 'regarding the compatibility of the ICS [Investment Court System] provided in the CETA'.19 On 30 April 2019, the CJEU, sitting in a full court composition, issued an opinion upholding the compatibility of the ISDS mechanism in the CETA with EU law.
The CJEU first held that the CETA section on the ISDS mechanism 'does not adversely affect the autonomy of the EU legal order' because the CETA 'does not confer on the envisaged tribunals any jurisdiction to interpret or apply EU law' beyond the CETA provisions, and because 'those tribunals have no jurisdiction to call into question the choices democratically made within a Party relating to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals, the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights'.20
The CJEU then held that the mechanism is compatible with the principle of equal treatment under Article 20 of the Charter of Fundamental Rights of the EU (Charter) because Canadian investors with access to a CETA tribunal are not comparable to Member States' investors who invest within the Union. The latter are not foreign investors.21 The mechanism was also compatible with 'the requirement that the EU competition law be effective' because it 'does not impede the full application of the provisions of the FEU Treaty [Treaty on the Functioning of the European Union (TFEU)] designed to ensure the preservation of undistorted competition in the internal market'.22 Finally, the ISDS mechanism was compatible with the right of access to an independent tribunal provided in Article 47 of the Charter. The accessibility requirement was met despite its significant financial burden because in Statement 36 of the CETA, 'the Commission and the Council have given a commitment to implement, rapidly and adequately, Article 8.39.6 of the CETA and to ensure the accessibility of envisaged tribunals to small and medium-sized enterprises'.23 In addition, the CETA provisions concerning appointment, composition, remuneration and removal of a tribunal, as well as the CETA's reference to the IBA Guidelines, satisfied all independence requirements.24
Following this opinion, investors expected that the EU would continue to include similar ISDS clauses in its investment treaties. However, the UK example casts doubt over the EU's capacity to impose such a court model on all third countries.
During the year in review, under Regulation (EU) 2019/452 on the screening of foreign direct investments into the Union,25 the EU acquired certain powers to control foreign direct investments (FDIs) into the EU on security grounds. The Commission made initial proposals for a new EU legislative act establishing a screening mechanism for FDI in September 2017. Those proposals responded to concerns by Member States that certain foreign investors had already acquired strategic assets, which they could use to hinder the EU's technological intellectual property rights, security interests or public order. The Commission's proposals aimed to put in order any disparities in the screening practice of the Member States and assert the EU's powers in this area.
Pursuant to Regulation (EU) 2019/452, the Commission will cooperate with the Member States' investment screening authorities and will give non-binding opinions on whether an FDI harms the EU's interests in sectors considered as relevant for security and public order reasons. The affected sectors include infrastructure, utilities, energy, advanced technologies (e.g., semiconductors, dual-use software, robotics and artificial intelligence), aerospace (e.g., drones, aircraft) and defence. The Commission's opinions will have binding force when an FDI relates to the EU's cross-border infrastructure or priority energy and space projects, listed in the Annex to Regulation (EU) 2019/452. The mechanism will apply fully as of 11 October 2020. Its downside is that the Commission will also be able to issue retroactive opinions on screened FDIs up to 15 months after their completion. Admittedly, this will mostly apply to Member States that have chosen not to screen their FDIs. However, it will also cause significant uncertainty for investment decisions in the affected sectors.
ii Developments affecting the relationship between EU law and protection granted by BITs: termination of intra-EU BITs and the impact of the Achmea judgment
As mentioned in our introduction, 2018 was marked by the adoption of the CJEU's now-famous Achmea judgment. By way of background, in 2016, the German Federal Court of Justice made a request to the CJEU for a preliminary ruling under Article 267 TFEU. In the underlying proceeding in Germany, Slovakia sought to set aside UNCITRAL arbitral awards rendered by a tribunal constituted under the Netherlands–Slovakia BIT by arguing that the tribunal lacked jurisdiction as the arbitration clause in the intra–EU BIT was incompatible with EU law.
On 6 March 2018, the Grand Chamber of the CJEU rendered its long-anticipated judgment.26 The CJEU found that Article 8 of the Netherlands–Slovakia BIT dealing with arbitration 'ha[d] an adverse effect on the autonomy of EU law'.27 The CJEU concluded that:
Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.28
Following the CJEU's judgment, on 31 October 2018, the German Federal Court of Justice set aside the arbitral award in Achmea on the ground that there was no valid arbitration agreement since the arbitration clause in the BIT was incompatible with EU law.29
Consequently, the Achmea judgment has accelerated the process of termination of intra-EU BITs. It has also raised questions about intra-EU investor–state arbitration under existing BITs and the Energy Charter Treaty (ECT), as well as enforcement in the EU of arbitral awards rendered in such arbitration.
2019 started with addressing the political and legal consequences of this judgment. On 15 January 2019, 22 Member States (including Belgium, Croatia, France, Germany, Italy, Romania, Slovakia, Spain, the Netherlands and the United Kingdom) issued a declaration 'on the legal consequences of the judgment of the Court of Justice in Achmea and on investment protection in the European Union'.30 They noted that they 'are bound to draw all necessary consequences from that judgment pursuant to their obligations under Union law' and that 'all investor-State arbitration clauses contained in bilateral investment treaties concluded between Member States are contrary to Union law and thus inapplicable'.31 The same Member States also agreed that the arbitration clause in the ECT 'would have to be disapplied' between Member States. Any different interpretation would be incompatible with the EU treaties.32 In the same declaration, the 22 Member States also undertook to terminate all intra-EU BITs 'by means of plurilateral treaty or . . . bilaterally' no later than 6 December 2019.33
On 16 January 2019, two other declarations were signed, one by Finland, Luxembourg, Malta, Slovenia and Sweden, and the other by Hungary. These Member States adopted the same position as the earlier declaration concerning the effect of the judgment on the intra-EU BITs, but a different one with respect to the ECT. The declaration by the first countries stated that 'the Achmea judgment is silent' regarding the ECT, that the issue was 'currently contested before a national court' in Sweden, and that 'it would be inappropriate . . . to express views as regards to the compatibility with Union Law . . .'.34 Hungary similarly stated in its separate declaration that 'in its view, the Achmea judgment concerns only the intra-EU bilateral investment treaties'.35
However, Member States' declarations reflected only political statements, and the question remained as to whether they had any binding legal effect under EU law.
Consequently, and in line with the political views they expressed earlier, on 24 October 2019, the Commission announced that the Member States had reached an agreement on a multilateral treaty for the termination of all intra-EU BITs (termination agreement). Twenty-three Member States, excluding Austria, Finland, Ireland36 and Sweden, signed this agreement on 5 May 2020. Sweden and Austria, which did not sign the termination agreement, chose instead to engage in the bilateral termination of their BITs, an option also provided in their 2019 political declarations.37 This brought the much-needed clarification as to the future of the existing intra-EU BITs.
On 14 May 2020, the Commission sent letters of formal notice to Finland and the UK urging them 'to take all necessary actions to urgently remove the intra-EU BITs from their legal order'. Without a 'satisfactory response' within four months, the Commission may decide to launch a formal infringement procedure against them.38
According to the termination agreement, as listed in its Annex A, all intra-EU BITs should be terminated by virtue of the termination agreement (Article 2). Moreover, the sunset clauses listed in Annex B (i.e., the clause whereby BIT provisions could remain in effect for years following termination) are now without any legal effect (Article 3). The termination agreement also terminates the legal effect of the arbitration clauses contained in intra-EU BITs already deemed contrary to EU treaties and in force since 1 January 2007 (Article 4). The agreement also covers the situation of terminated and new arbitration proceedings (Article 5 and 6). While terminated proceedings are not affected, pending disputes must be resolved via structured dialogue (Article 9). The termination agreement puts an emphasis on reaching a settlement between the investor and the Member States involved. In addition, if the investor waives all rights and claims pursuant to the relevant BIT, it must now address its claim to the national courts (Article 10). This mechanism seems to weaken the rationale behind investment treaty arbitration by depriving investors of an impartial forum. It remains to be seen how this mechanism will play out in practice, and whether investors in the midst of a dispute will welcome this new procedure.39
As stated in its preamble, the termination agreement does not cover intra-EU proceedings based on Article 26 of the ECT, leaving Member States to 'deal with this matter at a later stage'. Therefore, the question of whether Achmea also applies to the ECT, and the arbitration clause included therein, remains pending.
To date, all international arbitral tribunals constituted under intra-EU BITs have rejected intra-EU jurisdictional challenges, including several tribunals following the Achmea judgment.40 In the same vein, all international arbitral tribunals constituted under the ECT and tasked to consider an intra-EU claim have also held that the Achmea judgment does not apply to the ECT.41
Contrary to intra-EU BITs, the ECT is a multilateral agreement to which EU Member States, non-EU Member States and the EU are parties. In the Achmea judgment, the CJEU acknowledges that the EU has the 'capacity to conclude international agreements,' and that such capacity 'necessarily entail[s] the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected'.42
The tendency of arbitral tribunals constituted under the ECT to reject intra-EU jurisdictional objections continued in 2019. In the Landesbank Baden-Württemberg (LBBW) and others v. Kingdom of Spain case,43 the tribunal stressed that Article 26 of the ECT constituted an offer of arbitration by each EU Member State to investors from all other contracting parties without any limitations as regards intra-EU disputes. Putting a particular emphasis on the ECT as a multilateral treaty, the tribunal concluded that it had to give priority to the ECT as an instrument of international law. This would still be the case if EU law were to prohibit Spain from making an offer of arbitration under Article 26 of the ECT. This case illustrates that the Achmea judgment will continue to have a lasting effect and lead to a widening gap between investment treaty tribunals and an EU law-based interpretation by EU institutions, such as the Commission and the CJEU. In that sense, 2019 was another page in the captivating Achmea saga.
Nevertheless, the mandate given by the Council to the Commission to begin negotiations on the modernisation of the ECT might contribute to more clarity.44 In its mandate, the Council stated that ISDS provisions should reflect the EU approach in its investment protection agreements and the position taken by the EU in ongoing multilateral reforms.
In addition to the ECT, the Achmea judgment left open the door for yet more uncertainty regarding arbitral awards already issued under intra-EU BITs. In principle, the judgment should not affect the annulment of awards issued under the International Centre for Settlement of Investment Disputes (ICSID) Convention, which provides for a self-contained annulment mechanism. An arbitral tribunal or an ad hoc annulment committee constituted under the ICSID Convention is not under Member States' jurisdiction and is not bound by CJEU judgments. Several international arbitral tribunals have held that the Achmea judgment does not apply to disputes brought to ICSID arbitration under an intra-EU BIT.45
For its part, the GC clarified the relationship between the ICSID Convention and EU law in its judgment issued on 18 June 2019 in the Micula v. Commission case.46
In brief, during its accession process to the EU, Romania undertook to eliminate domestic measures that could be contrary to EU state aid law. In response, the Micula brothers and their companies, which made investments in Romania relying on the continuation of such measures, launched an ICSID arbitration on the basis of the Sweden–Romania BIT. Following an ICSID award in favour of the Miculas, Romania undertook partial payment of the award. In March 2015, the Commission ruled, however, that such payment constituted state aid under EU law. The Miculas filed an annulment application against this decision before the GC while lodging, in parallel, enforcement applications in several EU Member States, including the UK. In 2019, the GC upheld the application and annulled the 2015 decision. The GC considered that EU state aid law was inapplicable, and that the Commission had unlawfully exercised its powers retroactively. Indeed, pursuant to the Court's case law, 'compensation for damage suffered cannot be regarded as aid unless it has the effect of compensating for the withdrawal of unlawful or incompatible aid', which was not the case here since EU state aid rules did not apply in Romania before 2007.47 The GC further distinguished this case from Achmea, ruling that 'the arbitral tribunal was not bound to apply EU law to events occurring prior to the accession before it'.48
In parallel to the EU proceedings, the UK Supreme Court49 was asked to decide on the possibility of enforcing the ICSID award against Romania. The case was heard in February 2019, a few months before the GC judgment. Two questions reached the UK Supreme Court: first, whether the High Court had the power to stay the enforcement of an ICSID award; and second, where an ICSID award against an EU Member State has been stayed pending proceedings before the EU courts, whether the duty of sincere cooperation precluded an English court from ordering the state to provide security. In February 2020, the UK Supreme Court unanimously held that the UK duty of sincere cooperation could not hinder its enforcement obligations under the ICSID Convention.50
As regards non-ICSID awards issued based on intra-EU BITs, the impact of the Achmea judgment will depend on the seat of the underlying arbitration proceedings. The judgment does not produce legal effect outside the EU. Therefore, in principle, a non-EU Member State court would not be bound by the judgment. In contrast, an EU Member State court is bound by judgments of the CJEU and may consider that the Achmea judgment should give rise to the annulment of an arbitral award on the grounds of public policy or lack of a valid arbitration agreement. The same reasoning applies to the enforcement of arbitral awards issued under intra-EU BITs within the EU. In cases of doubt, an EU Member State court may seek further clarifications from the CJEU through a request for a preliminary ruling.
Member State courts have begun to consider the Achmea judgment in the context of set aside proceedings. On 22 February 2019, the Svea Court of Appeal declined to set aside an SCC award made in PL Holdings v. Poland under the Luxembourg–Poland BIT.51 The Svea Court of Appeal agreed that the judgment 'cannot be understood in any other way than that the dispute resolution agreement is invalid as between the Member States'.52 However, that Court also stated that 'the CJEU's ruling does not mean that an arbitration agreement between an investor and a Member State in a specific case [as opposed to dispute resolution mechanism in a treaty] violates the TFEU'.53 Because Poland, unlike Slovakia in the Achmea proceedings, had not raised the intra-EU objection until later in the arbitration, it had implicitly consented to arbitration and was precluded from arguing invalidity.54 The same court also rejected Poland's arguments based on the arbitrability of the subject matter and Swedish public policy considerations.55
On 9 April 2019, the Swedish Supreme Court accepted Poland's application for an appeal of the Svea Court of Appeal's decision. However, in February 2020, the Swedish Supreme Court requested a preliminary ruling from the CJEU on the following question:
Do Articles 267 and 344 TFEU, as interpreted in Achmea, mean that an arbitration agreement is invalid if it has been entered into by a member state and an investor – when there is an arbitration clause in an investment treaty which is invalid because the treaty was entered into between two member states – by means of the member state, after the investor has requested arbitration, as a result of its freely expressed wishes, refraining from objecting against the jurisdiction [of the tribunal].56
The Sweden Supreme Court therefore requested guidance on how to treat the arbitration clause, considering that Swedish law viewed the investor's request for arbitration as a new and separate offer that Poland accepted by its conduct independently from any investment treaty.57
Outlook and conclusions
In 2019, the EU continued to adjust its policy and negotiating position on investment protection treaties. In its 2020 report to the Parliament and the Council on the application of Regulation 1219/2012, the Commission reported that given Member States' demands for the conclusion of new or the amendment of existing investment agreements, and considering that their replacement by EU investment agreements will take some time, the transitional arrangements set out in the Regulation would continue to apply. The EU's approach to intra-EU BITs was clarified in the termination agreement, albeit leaving aside the question of the continued application of the ECT as between EU Member States.
1 Edward Borovikov and Anna Crevon-Tarassova are partners and Nicoleta Tuominen is counsel at Dentons. The authors would like to thank Isabel Fressynet, junior associate at Dentons, for her contributions to this chapter.
2 Report from the Commission to the European Parliament on the application of Regulation (EU) No. 1219/2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, 6 April 2020, COM (2020), 134 (available at https://trade.ec.europa.eu/doclib/docs/2020/april/tradoc_158703.pdf).
3 'EU and Singapore conclude Investment talks', European Commission, press release, Brussels, 17 October 2014.
4 Opinion 2/15 of the CJEU (full court), 16 May 2017, ECLI:EU:C:2017:376.
5 'Agreement with Singapore set to give a boost to EU-Asia Trade', European Commission, press release, Brussels, 13 February 2019.
6 See EU–Singapore Free Trade agreement and Investment Protection agreement in focus (available at https://ec.europa.eu/trade/policy/in-focus/eu-singapore-agreement/).
7 'EU and Vietnam reach agreement on free trade deal', European Commission, press release, Brussels, 4 August 2015.
8 EU–Vietnam Trade agreement legislative train schedule (available at https://www.europarl.europa.eu/legislative-train/theme-a-stronger-europe-in-the-world/file-eu-vietnam-free-trade-agreement).
9 'European Commission welcomes Parliament's support of trade deal with Canada', European Commission, press release, Brussels, 15 February 2017. The CETA was signed by the EU and Canada on 30 October 2016.
10 'EU-Canada trade agreement enters into force', European Commission, press release, Brussels, 20 September 2017.
11 'European Commission proposes signature and conclusion of EU-Canada trade deal', European Commission, press release, Brussels, 5 July 2016.
12 See Council of the European Union, CETA, ratification details (available at https://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2016017).
13 EU and Mexico conclude negotiations for new trade agreement, European Commission, press release, Brussels, 28 April 2020, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_756.
14 Overview of the FTA and other trade negotiations, European Commission, updated May 2020, available at https://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf.
15 EU and Mercosur reached an agreement on trade, available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=2039.
16 'No ISDS in draft UK-EU agreement', Global Arbitration Review, Tom Jones, 19 May 2020.
18 CETA, Articles 8.27 & 8.28; EU-Vietnam Investment Protection agreement, agreed text as of 24 September 2018, Chapter 3, Articles 3.38 & 3.39.
19 Belgian request for an opinion from the European Court of Justice, available on the Kingdom of Belgium, Foreign Affairs, Foreign Trade and Development Cooperation website at https://diplomatie.belgium.be/en/newsroom/news/2017/minister_reynders_submits_request_opinion_ceta. The Kingdom of Belgium raised four questions with regard to the exclusive competence of the CJEU to provide the definitive interpretation of European law; the general principle of equality and the practical effect requirement of European Union law; the right of access to the courts; and the right to an independent and impartial judiciary.
20 Opinion 1/17 of the Court (Full Court), 30 April 2019, ECLI:EU:C:2019:341, paras. 136, 160, 161.
21 id., paras. 180, 181.
22 id., para. 188.
23 id., paras. 218, 222.
24 id., paras. 223-244.
25 Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, OJ L 79, 21.3.2019, pp.1–14.
26 Case C-284/16, Slovak Republic v. Achmea BV, CJEU (grand chamber), judgment, 6 March 2018. The judgment is final and not subject to appeal within the EU system.
27 id., para. 59.
28 id., para. 60.
29 German Federal Court of Justice, Decision, case I ZB 2/15 (Oct. 31, 2018).
30 'Declaration of the Representatives of the Governments of the Member States on the Legal Consequences of the judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 15 January 2019 (available at https://ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf).
31 id., p. 1.
32 id., p. 2.
33 id., pp. 3–4.
34 'Declaration of the Representatives of the Governments of the Member States on the Enforcement of the judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 16 January 2019 (available at https://www.regeringen.se/48ee19/contentassets/d759689c0c804a9ea7af6b2de7320128/achmea-declaration.pdf).
35 'Declaration of the Representative of the Government of Hungary on the Legal Consequences of the judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 16 January 2019 (available at https://www.kormany.hu/download/5/1b/81000/Hungarys%20Declaration%20on%20Achmea.pdf.
36 Ireland terminated its only intra-EU BIT, with the Czech Republic, in 2011.
37 See para. 8, p. 4 of the Declaration signed by Austria (available at https://ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf); and para. 8, p .5 of the Declaration signed by Sweden ( available at https://www.regeringen.se/48ee19/contentassets/d759689c0c804a9ea7af6b2de7320128/achmea-declaration.pdf).
38 EU Commission, May infringements package; key decisions, 14 May 2020 (available at https://ec.europa.eu/commission/presscorner/detail/en/INF_20_859).
40 See, e.g., Marfin Investment Group v. The Republic of Cyprus, ICSID case No. ARB/13/27, award, 26 July 2018; UP and CD Holding Internationale v. Hungary, ICSID case No ARB/13/35, award, 9 October 2018. See also the 2013, 2014, 2015, 2016, and 2017 publications of The International Arbitration Review for a description of prior awards by international arbitral tribunals.
41 See Masdar Solar & Wind Cooperatief UA v. Kingdom of Spain, ICSID case No. ARB/14/1, award, 16 May 2018; Antin Infrastructure Services Luxembourg Sàrl v. Kingdom of Spain, ICSID case No. ARB/13/31, award, 15 June 2018; Vattenfall AB v. Federal Republic of Germany, ICSID case No. ARB/12/12, decision on the Achmea issue, 31 August 2018; Foresight Luxembourg Solar 1 SÀRL v. Kingdom of Spain, SCC arbitration V (2015/150), final award, 14 November 2018; RREEF Infrastructure (GP) Limited v. Kingdom of Spain, ICSID case No. ARB/13/30, decision on responsibility and on the principles of quantum, 30 November 2018; Greentech et al v. Italian Republic, SCC arbitration V (2015/095), final award, 23 December 2018; CEF Energia BV v. Italian Republic, SCC arbitration V (2015/158), award, 16 January 2019.
42 Case C-284/16, Slovak Republic v. Achmea BV, CJEU (grand chamber), judgment, 6 March 2018, para. 57.
43 Landesbank Baden-Württemberg (LBBW) et al v. Kingdom of Spain, ICSID case No. ARB/15/45, Decision on the intra-EU jurisdictional objection, 25 February 2019.
44 Council adopts negotiation directives for modernisation of Energy Charter Treaty, press release, 15 July 2019 (available at https://www.consilium.europa.eu/en/press/press-releases/2019/07/15/council-adopts-negotiation-directives-for-modernisation-of-energy-charter-treaty/).
45 UP and CD Holding Internationale v. Hungary, ICSID case No. ARB/13/35, award, 9 October 2018; Mr Ioan Micula, Mr Viorel Micula et al v. Romania, ICSID case No. ARB/14/29, award, 5 March 2020.
46 Micula et al v. Commission, case T-704/15.
47 id., paras. 103-104.
48 id., para. 87.
49 Micula & Others v. Romania  UKSC 5 (19 February 2020).
50 Micula & Others v. Romania  UKSC 5 (19 February 2020), para 110-111.
51 Svea Court of Appeal, case T 8538-17, T 12033-17, 22 February 2019.
52 id., p. 42.
53 id., p. 43.
54 id., Section 5.2.7.
55 id., Sections 5.2.5-5.2.6.
56 Poland v. PL Holdings, T-1569/19, para. 57.
57 id., para. 28.