Latest trends in intra-EU investor-state arbitration - a “strange animal” soon to be extinct?

The future of investor-state arbitration between EU investors and EU Member States (“intra-EU investment arbitration”) remains uncertain.This has become particularly evident in light of the EU Commission’s efforts to abolish intra-EU investment arbitration, coupled with the growing number of judgments by the Court of Justice of the European Union (“CJEU”) declaring the underlying arbitrations incompatible with EU law (Achmea, Komstroy and PL Holdings).In the Achmea decision, the CJEU found an intra-EU investment arbitration under the bilateral investment treaty (“BIT”) at issue incompatible with the principle of primacy and autonomy of EU law under Articles 267 and 344 of the Treaty on the Functioning of the EU (“TFEU”).In Komstroy, the CJEU expanded its Achmea reasoning to intra-EU investment arbitrations under the ...To read the full article, please see the PDF file

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Authors

Lars MARKERT

Partner
Tokyo

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Lars’ practice is focused on commercial and investment arbitration. He has particular expertise in contentious proceedings involving post-M&A, commercial, manufacturing, construction, and distribution matters, in areas such as life sciences, automotive, and energy. Lars also deals with cases involving governments, and has advised foreign investors and sovereign states on issues of foreign direct investment and public international law, including related negotiations and investor-state disputes. He has been involved in more than 50 international arbitrations as counsel and arbitrator under the arbitration rules of institutions such as the ICC, DIS, SAC, NAI, ICDR, KCAB, JCAA, SIAC, and ICSID, as well as under the UNCITRAL Rules.

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Anne-Marie DOERNENBURG

Counsel
Tokyo

+81-3-6250-6776

Having worked in many different jurisdictions, including in Germany, London, Paris, and Washington D.C., Anne-Marie regularly advises corporations and governments on investor-state and commercial disputes, as well as related negotiations. She is dual-qualified (Germany/England & Wales) and comes from a trilingual background. Prior to joining Nishimura & Asahi, Anne-Marie worked at Freshfields Bruckhaus Deringer LLP from 2014 to 2018.

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