CYIL Vol. 7, 2016

MILOŠ OLÍK

CYIL 7 ȍ2016Ȏ

1. Does the arbitration clause contained in Art. 8(2) BIT infringe Art. 344 TFEU? 11 Art. 344 TFEU precludes Member States from submitting a dispute with an existing EU law link to any method of dispute settlement other than those stipulated in the Treaties. The BGH therefore seeks the CJ EU’s answer on whether the agreement of Member States to submit disputes with private individuals to arbitration tribunals does in fact contravene the Treaties, as they could decide on EU law questions without having the possibility of requesting a preliminary ruling from the CJ EU. In its preliminary opinion, the BGH held that it does not agree with the extension of Art. 344 TFEU to cover disputes between private investors and Member States. Although the BGH takes into account the fact that the wording of this Article does not offer an unequivocal conclusion on the possibility of excluding this provision from arbitrations commenced by investors from intra-EU BIT member States, it also, pursuant to the BGH, does not support the argument why individuals should in fact be included. The BGH also expressed doubts on whether the existence of a dispute concerning the interpretation and application of the Treaties, which is one of the prerequisites for the use of Art. 344 TFEU, is demonstrable. 12 The BGH relied on the fact that the Final Award was based mainly on the contractual obligations under the intra-EU BIT and not on questions regulated by EU law. The decision also addresses the fact that issues such as the one between Achmea and the Slovak Republic cannot be settled in proceedings under EU law. The BGH wonders whether the lack of any provisions for judicial recourse against Member States which could be used by investors is proof that Art. 344 TFEU does not apply under these circumstances. Accordingly, where the Treaties do not offer procedures which can be protected under Art. 344 TFEU, then such disputes cannot be qualified as disputes within the meaning of this Article. 2. Does the arbitration clause contained in Art. 8(2) BIT infringe Art. 267 TFEU? 13 The BGH continues to assess whether the uniform interpretation and application of EU law would be undermined by the Tribunal’s lack of possibility of referring questions pertaining to EU law to the CJ EU. The BGH argues that it does not see any reasons why the arbitration clause contained in Art. 8(2) BIT should be held as incompatible with Art. 267 TFEU. It noted that, although it is beyond all doubt that arbitral tribunals are not entitled to request and obtain preliminary rulings from the CJ EU, the uniform interpretation of EU law can be ensured through the national courts’ possibility to review the compatibility of awards with EU law,

11 Para. 23 and following of the Decision. 12 Para. 30 and following of the Decision. 13 Para. 45 and following of the Decision.

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