In an important judgment dated 6 March 2018, the ECJ has ruled on an eagerly awaited issue. The difficulty came from claims under bilateral investment protection treaties brought by investors from EU Member States against another EU Member State that had hosted their investments. ECJ had to decide on the compatibility of the application between Member States of investment protection treaties (BIT) which allow recourse to arbitration. The ECJ had been requested by the Bundesgerichthof, Federal Court of Germany to give a preliminary ruling with regard to a request for annulment of an award rendered by an arbitral tribunal with its seat in Germany rendered against Slovakia which had been condemned to indemnity to a Dutch insurance company (Achmea, PCA Case n ° 2008/13) on the basis of the investment protection treaty ratified between the Nederland and Slovakia. The Court points out the incompatibility between the European Union’s system, and in particular the competence of the ECJ to settle disputes under EU law, and the arbitration mechanisms set up by the Bilateral Investment Treaties.
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