Digging Deeper: Summary of the Hearing before the CJEU in the Achmea Case

On 6 March 2018, the Court of Justice of the European Union (CJEU) rendered itsmuch-awaited judgment in Slovak Republic v Achmea, in which it found that the arbitrationclause contained in Article 8 of The Netherlands-Slovak Republic BIT wasincompatible with EU law. While the implications of this decision are not entirelyclear yet, it is generally agreed that it is likely to have an impact on pending and futurearbitration proceedings initiated pursuant to arbitration clauses contained in intra-EUbilateral investment treaties (BITS). This article illustrates the arguments presented atthe hearing that took place before the CJEU on 19 June 2017. The contribution addressestwo main points. First, it lays out the arguments of the disputing parties, the SlovakRepublic and Achmea. Second, it sheds light on the positions of the several interestedEU Member States as argued at the hearing in Luxembourg. At the hearing, the interestedMember States presented opposing views on the interpretation of Articles 344,267, and 18 TFEU. This article facilitates the understanding of the different ways inwhich these Articles are interpreted, and have been interpreted, by the Member Statesand sets out their arguments in favour or against intra-EU BITS. The multiplicity of theviews expressed at the hearing may assist the interested audience in understandinghow the Advocate General Wathelet and the CJEU could reach such different conclusionson the same case.