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CYIL 7 ȍ2016Ȏ CASE NOTES: COURT OF JUSTICE OF THE EUROPEAN UNION TO RULE…
award, and found no reasons which would justify the annulment of the Final Award.
Although the Higher Regional Court was asked by the Slovak Republic to request
a preliminary ruling from the CJ EU, it refused to do so as it considered the questions
to be already settled under CJ EU case law under the acte claire doctrine. In addition,
the Higher Regional Court dismissed the challenge and decided that the validity of the
intra-EU BITS has not been affected by EU law.8 Once again the Slovak Republic was
left dependent on the outcome of a re-appeal submitted to the BGH.
The BGH’s referral to the CJ EU – the decision
Not only does the BGH explain the reasons for the referral, but it also offers
a closer look at the BGH’s current legal position regarding the matter at hand, and
the arguments presented, mainly by the Slovak Republic. It opened its decision by
outlining three questions which had been referred to the CJ EU. The BGH took
a firm stance on the issue of the necessity for a CJ EU decision. The BGH notes
that the CJ EU has yet to rule on the question of whether an arbitration clause in
an intra-EU BIT, under which a Member State in a dispute with an investor has
agreed to abide by an arbitration award, is compatible with EU law in general, and
in particular Art. 344, 267 and 18 TFEU, or does not apply because it is contrary to
those provisions. The BGH notes that no specific guidance can be found in CJ EU
case law which would sufficiently clearly answer how to interpret these Articles in
the particular circumstances of the case at hand.9 The BGH goes on to then carefully
examine each of these Articles from the perspective of both EU and investment law
by assessing the following three questions:10
1. Does Art. 344 TFEU pose an obstacle to the application of a clause in a bilateral
investment treaty between Member States of the Union (intra-Union BIT)
under which an investor from one contracting State is able in the event of
a dispute over investments in another contracting State to initiate proceedings
against that State before an arbitral tribunal, where the investment treaty was
executed prior to the accession to the Union of one of the contracting States,
but arbitration proceedings are to be initiated after accession?
If the answer to Question 1 is in the negative:
2. Does Art. 267 TFEU pose an obstacle to the application of such a clause?
If the answers to Questions 1 and 2 are in the negative:
3. Does Art. 18 (1) TFEU pose an obstacle to the application of such a clause
in the circumstances described in Question 1?
8 Decision of the Oberlandesgericht Frankfurt am Main of 18th of December, 2014, case No. 26 Sch
3/13. Available at: ; (last visit:
May 23, 2016).
9 See e.g. para. 22 of the Decision.
10 See the ruling of the Decision.