Whether BIT arbitration between EU member states is permitted, as a matter of EU law, is heavily debated. The EU Commission strongly takes the view that there is no room for investment treaty arbitration amongst member states. As previously discussed here, the Commission has intervened in arbitrations in support of the position that the arbitral tribunal lacked jurisdiction to hear the dispute. Eureko v. Slovakia apparently is the first case where this issue has reached state courts, namely the courts in Germany. Earlier this week, in its second decision on the matter, the German Federal Supreme Court (Bundesgerichtshof), published its decision to refer the matter to the European Court of Justice (as I had expected it would). The Court clearly felt obliged to refer the matter to the European Court of Justice, but at the same time was very clear that in its opinion, investment treaty arbitration amongst member states is compatible with EU law. Continue reading
Investment arbitration under investment treaties between EU member states is a hot topic, in particular given the EU Commission’s strong views on the subject: The Commission has intervened in arbitrations in support of the position that the arbitral tribunal lacked jurisdiction to hear the dispute. One such matter was Eureko v. Slovakia, apparently the first case where this issue was brought before a state court, when Slovakia challenged an interim award confirming the jurisdiction of the tribunal in the Frankfurt Court of Appeals (Oberlandesgericht). The Frankfurt court in May 2012 upheld the award (see here and here for comments). The matter proceeded to the German Federal Supreme Court (Bundesgerichtshof) for judicial review (Rechtsbeschwerde). The Federal Supreme court published its order (Beschluss) dated September 19, 2013 on its website earlier this week.