CYIL Vol. 7, 2016

MILOŠ OLÍK CYIL 7 ȍ2016Ȏ providers, which prevented the use of insurance brokers, the distribution of profits from the health insurance sector and the disposal of insurance portfolios. 3 In 2008, Achmea, being one such investor and claiming to be severely affected by the measures of 2006, commenced investment arbitration proceedings under the UNCITRAL Rules. In this arbitration seated in Frankfurt, Germany, Achmea claimed that the Slovak Republic’s activities resulted in the breach of investor’s rights under the Slovak-Dutch intra-EU BIT. The Slovak Republic denied the claims and requested that the Tribunal, composed of Professor van den Berg, Mr. Veeder QC and Professor Lowe QC (as Presiding Arbitrator), reject the jurisdiction to hear the case, as accession to the EU had rendered the intra-EU BIT null and void due to its incompatibility with EU law. The European Commission sided with the Slovak Republic and submitted in the jurisdictional part of the arbitration an amicus curiae brief in favour of the State. However, the Tribunal was not convinced by the argumentation, assumed its jurisdiction in the, ‘Award on Jurisdiction, Arbitrability and Suspension’, 4 and continued to hear the merits phase of the case. The Slovak Republic contested this jurisdictional decision by requesting the Higher Regional Court in Frankfurt to set it aside. After this application was dismissed 5 (the Higher Regional Court rejected the claim that EU law is breached by the application of intra-EU BIT provisions), the Slovak Republic filed an appeal on points of law with the BGH. In the meantime, in the investment arbitration the Tribunal issued a Final Award 6 in which it held that the Slovak Republic was liable for breaching an investor’s treaty rights under the intra-EU BIT. Achmea was granted compensation in the amount of EUR 22.1 million plus interest as well as the partial reimbursement of costs and legal fees paid in the arbitration. This also had a significant impact on the German court proceedings. The BGH had to dismiss the Slovak Republic’s appeal as inadmissible, since the issuance of the Final Award created a lack of legal interest as regards deciding on the motion. 7 Therefore, the Slovak Republic had to return to the Higher Regional Court and request the setting-aside of the Final Award. As expected, theHigher Regional Court upheld its argumentation, presented in the proceedings on the jurisdictional 3 In 2011 the Slovak Constitutional Court declared the ban on the distribution of profits to be incompatible with the Slovak Constitution. 4 Award on Jurisdiction, Arbitrability and Suspension of the 26 th of October, 2010. Available at: http:// www.italaw.com/sites/default/files/case-documents/ita0309.pdf; (last visit: May 23, 2016). 5 Decision of the Oberlandesgericht Frankfurt am Main of the 10 th of May, 2012, case No. 26 SchH 11/10. 6 Final Award of the 7 th of December, 2012. Available at: http://www.italaw.com/sites/default/files/case- documents/italaw3206.pdf; (last visit: May 23, 2016). 7 DecisionNo.IIIZB37/12ofthe30 th ofApril2014.Availableat:http://juris.bundesgerichtshof.de/cgi-bin/ rechtsprechung/document.py?Gericht=bgh&Art=en&sid=abda20215f3ce4337414096619675328&nr= 67952&pos=0&anz=2; (last visit: May 23, 2016).

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