La mancata esecuzione del lodo arbitrale nel caso Achmea: quale futuro per le controversie in materia di investimento intra-UE?

Luca Pantaleo

2018-01-01

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Abstract

The aim of this article is to examine the decision of Germany’s Federal Court of Justice (Bundesgerichtshof), with which the German highest court has followed up on the rul- ing rendered by the Court of Justice in the Achmea case. As is well known, in this ruling the Luxembourg Court has stated that international arbitration constituted under bilat- eral investment agreements concluded between Member States of the EU (so-called in- tra-EU arbitration) is incompatible with EU law, particularly with Article 344 TFEU. In the aftermath of the Achmea judgment, its far-reaching consequences became imme- diately apparent. After all, the ruling raised complex systemic issues that cannot be re- solved easily, such as the need to safeguard the supremacy of the EU legal order while taking into account the status under international law of agreements validly concluded by the Member States. The complexities involved in this case have not escaped the Ger- man court’s attention, which has formulated some extremely interesting points. There- fore, this article provides an insightful analysis of a rapidly evolving issue.