Impact of the EC Decision and of the Achmea Judgment on the ongoing investments arbitration proceedings on the ECT
In May 2017, it was issued the first arbitration award against Spain in the case Eiser v Spain, where the World Bank’s ICSID ruled in favor of the involved investors and granted them a millionaire compensation. Notwithstanding that the award was emitted prior to the enactment of the EC Decision, Spain had already alleged, within the above arbitration proceedings, that an Arbitration Tribunal was not the competent authority to rule over investment disputes between two Member States of the EU essentially based on the same reasoning later on defended by the EC.
On the contrary, the Arbitral Tribunal that decided on the case considered that there is no limitation included in the ECT related to intra-EU member states disputes, and, therefore, that the arbitration clause contained in Article 26 of the ECT was applicable.
However, Eiser has not yet enforced the above award before Spain, since the latter filed an annulment action before the ICSID which is pending of resolution.
Novenergía: The Arbitral Tribunal considered the EC Decision «entirely irrelevant», as the Tribunal was not applying EU Law to solve the dispute
In February 2018, and despite of the previous enactment of the EC Decision, the Arbitration Center of the Stockholm Chamber of Commerce (SCC) declared its own competence to rule on a new case against Spain under the ECT (Novenergía v. Spain) and decided, again, in favor of the investor against Spain. The Arbitral Tribunal considered the EC Decision «entirely irrelevant», as the Tribunal was not applying EU Law to solve the dispute and, thus, they were of the opinion that the Decision was not binding.
However, the Swedish Svea Court of Appeals subsequently decided to stay the enforcement of the above award. Under that Court proceedings Spain is alleging that the arbitration clause included under Article 26 of the ECT is incompatible with EU law and, therefore, that the tribunal lacked jurisdiction based on the same reasoning included under the Achmea Judgment. In parallel, Spain has requested that the Swedish court requests the CJEU to confirm the compatibility of the ECT with EU law, and the application of the same reasoning in Achmea Judgement to the ECT.
In May 2018, the ICSID has ruled, again, against Spain in the case Masdar v. Spain. The award also rejected the jurisdiction objections of Spain, as considered EU law not incompatible with the arbitration clause of Article 26 ECT. This resolution also sustained that the Achmea Judgment «has no bearing upon the present case» as it cannot be applied to multilateral treaties, such as the ECT, to which the EU itself is a party.
For the time being, the Arbitral Tribunals are not applying the EC Decision nor the Achmea Judgment, but it was expected the international arbitrators to be certainly reluctant to accept that EU Law is of application to arbitration disputes where EU Law it is not applied, at any rate, for the resolution of the case.
The next word will be the one from the Courts of the Member States and the Svea Court of Appeals on the Novenergía v. Spain, will be the first but not the last one to pronounce, since it will follow very soon the enforcement of the Masdar v. Spain case and of the very recent award ruled in the Antin v. Spain case, again, against Spain, in June (and not published yet).
Only time (and CJEU) will tell whether EC Decision and Achmea Judgement suppose the end of investment arbitration, under the ECT between Member States.