The Future of Arbitration in Europe

Editor
Axel Calissendorff

Editorial Assistant
Jonathan Löwy

This book reflects some interesting contributions in a conference organized on 25–26 October 2018 in Stockholm by the research panel for arbitration and other dispute resolution of the Stockholm Centre for Commercial Law (“SCCL”) and the Oxford Institute of European and Comparative Law (“IECL”) under the main theme The Future for Arbitration in Europe. A main topic was to discuss the implications of the so called Achmea judgment of the Court of Justice of European Union (“CJEU”) which was discussed by highly distinguished panels. Very rarely would a single arbitration-related decision produce as significant an impact as the Achmea judgment has done since the judgment was rendered in 2018. In the Achmea judgment the CJEU ruled that the arbitration clause set out in a bilateral investment treaty (“BIT”) between the Netherlands and Slovakia had an adverse effect on the autonomy of EU law and therefore incompatible with EU law. An arbitration award rendered under the arbitration clause set out int the said BIT was subsequently set aside by a competent court in Germany. There is no doubt that the Achmea judgment will remain a cornerstone issue in the world of arbitration for a long period of time. The judgment sent a shockwave to proponents of investment treaty arbitration and a larger part of the investment community. A vital purpose of the conference was an attempt to summarize the Achmea debate thus far. The CJEU succinctly ruled on a number of issues that are important for the supremacy of EU law and, indirectly, the role of EU institutions. The investment treaty arbitration system (“ITA”) had long been, if not rejected, at least not welcomed by the EU. The clash could have been foreseen and cracks appeared long ago before Achmea. In light of the Achmea judgment, the Member States has or will terminate all bilateral investment treaties concluded between them and other Member States by means of a plurilateral treaty or, where that is mutually recognized as more expedient, bilaterally. In the debate the question has been raised to what extent the arbitration clause set out in the Energy Charter Treaty (“ECT”). The debate is likely to evolve over time and various ways to arrange alternative credible and well-functioning investor-state settlement mechanisms is likely to be thoroughly evaluated by proponents of investor-state protection outside of national courts. There is a hope that readers of this book will get a flavor of the debate at the conference. 

Axel Calissendorff