How to Enforce the Achmea Judgment – Tools for EU Member States before, during and after Investment Arbitration Proceedings Brought by an Investor from Another EU Member State

Abstract

Arbitration tribunals, in particular those established under the ICSID Convention, refuse to adhere to the judgment of the Court of Justice of the European Union in Achmea. Are EU Member States at their mercy? So goes the story presented at conferences and roadshows, as well as in academic publications, which often point to the special protection that ICSID awards enjoy pursuant to Articles 53 and 54 of the ICSID Convention (this element is also often recalled by ICSID tribunals in awards in reaction to arguments based on Union law, in particular the unenforceability of intra-EU awards). This article sets out effective weapons that EU Member States may deploy prior to, during, and after the arbitration procedure, in order to enforce effectively the judgment in Achmea.