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IS THERE A CONSISTENCY IN THE EU’S APPROACH TOWARDS INVESTMENT ARBITRATION?

The history of the European Union’s unease on the anti-arbitration policy is long. It dates back in 2007 and the Lisbon Treaty which transferred competence for concluding treaties from the Member States (MSs) to the European Union. In 2019 it is hard to find someone in legal circles who doesn’t know about the famous and controversial Achmea judgment. Court of Justice of the European Union (CJEU) played hard on this topic, although Advocate General and the national court of MSs had different and thoroughly argumented opinions. By this judgment, all arbitration clauses in intra-EU BITs have been invalidated. On the other hand, CJEU didn’t offer an adequate alternative for invalid arbitration clauses, nor answered on the question of substantive protection, which is provided by intra-EU BITs. More controversially, in Opinion 1/17 Court declared CETA’s provision on dispute settlement valid and EU friendly. The reaction of the MSs almost validated CJEU’s intervention into, by then, so carefully built mosaic of investment dispute settlements. Whether it has been given under the pressure of the Commission or at the initiative of MSs, together with the respective judgment, it was an impulsive move. In this Article, the Authors are going to explain how did the Achmea judgment disturbed the internal market and why the past system was more investment-friendly.