Enforcing intra-EU ICSID arbitration awards in a post-Achmea world in Europe: could the European Court of Human Rights assist in resolving the deadlock?

Abstract

When, at the enforcement stage, a European Union (‘EU’) Member State’s national court refuses to recognize and/or enforce a final intra-EU arbitration award rendered as per the ICSID Convention on the basis of the Court of Justice of the EU (‘CJEU’)’s decision in Slowakische Republik v Achmea BV, the right to the peaceful enjoyment of possessions, guaranteed by article 1 of Protocol No. 1 (‘A1P1’) of the European Convention on Human Rights (the ‘ECHR’), may be infringed. This article explores that issue. First, and by way of context, it explains the development of the so-called ‘intra-EU objection’ in the context of investor–State arbitration, culminating in the CJEU’s seminal ruling in Achmea and its progenies. Second, it provides an overview of various efforts to enforce intra-EU awards post-Achmea, focusing on ICSID Convention awards that have cleared any post-award remedies under the Convention, and how national courts have approached this. Third, it details how A1P1 of the ECHR might apply to the non-enforcement of intra-EU ICSID awards—engaging in a detailed analysis of the tests that would be applied by the European Court of Human Rights in such an instance. Finally, it discusses the potential remedy before the Court and the consequences for a finding of violation. While this article is focused on final and enforceable ICSID Convention awards, the analysis may be relevant to other intra-EU enforcement scenarios, subject to the specific factual circumstances in those scenarios.