Since our last update in May 2018, there have been a number of further notable developments in the London arbitration market. These include an important decision by the Court of Justice of the European Union (the “CJEU”) that threatens the future of investment arbitration as between EU Member States, as well as a number of decisions in the English courts that demonstrate the robust and pro-arbitration approach that the English courts continue to adopt.
1. INVESTMENT ARBITRATION IN THE EU
On 15 January 2019, the 28 EU Member States issued a political declaration setting out their intention to terminate all bilateral investment treaties as between EU Member States. The declaration also refers to requests being made to Member State courts in pending actions to set aside (or not to enforce) awards rendered pursuant to those investment treaties.
The basis for this declaration is the decision of the CJEU last year in Slovakia v Achmea BV C-284/16. In that case, an investment tribunal constituted under the UNCITRAL Rules found that Slovakia had violated the bilateral investment treaty between Slovakia and the Netherlands (the BIT), and Slovakia subsequently brought proceedings in Germany to have the award set aside. The German courts referred the case to the CJEU for a preliminary ruling on whether the arbitration agreement in the BIT was compatible with EU law.
