CYIL vol. 12 (2021)

Miriama Kiselyova

CYIL 12 (2021)

2. Implementation of the Komstroy judgment Before addressing the implementation of the Komstroy judgment, it is worth reminding the implementation of the Achmea judgment. The Achmea judgment was issued in March 2018. In January 2019 the Member States signed three different declarations on legal implications of the Achmea judgment 23 . The plurilateral termination treaty 24 was signed by 23 Member States in May 2020 and entered into force in August 2020. As of today 17 Member States have ratified it 25 . Austria, Sweden, Finland and the United Kingdom have decided not to sign the plurilateral termination treaty 26 . These states have terminated their BITs with Slovakia bilaterally, last of them – the UK only in 2021. As it results from the above stated, the implementation of the Achmea judgment was neither fast nor easy. The attitude of the investment arbitration tribunals was rather straightforward: no tribunal inside or outside the EU declined its jurisdiction based on intra EU jurisdictional objection 27 neither in cases under ECT, nor in cases under the BIT, and neither after the declarations signature, nor after the states signed the termination agreement. The tribunals did not consider the Achmea judgment as sufficient reason to waive jurisdiction and did not consider the 2019 declarations as having binding interpretative value. In particular, since 2018, twenty new intra EU under the ECT cases have been commenced, and after the Achmea judgment, ten intra EU cases under the ECT have been concluded 28 . Perhaps the most complex reply to intra EU ECT objection can be found in Eskosol v Italy 29 , where the tribunal took the liberty of explaining on 112 pages 30 why it declines intra EU ECT jurisdiction objection 31 . As to the Slovak post Achmea arbitration experience, Muszynianka v Slovakia 32 was decided in October 2020, no damages were awarded by the tribunal. The intra EU BIT objection was, however, declined. The tribunal found the reference to Achmea judgment, declarations and signature of termination agreement irrelevant and stated there is no incompliance between BIT and EU law. There was even an exchange of note verbale between Slovakia and Poland confirming the effects of the 2019 declaration but it was not convincing for the tribunal. The Achmea judgment allegedly offered no guidance on the application before the tribunal. 23 Declaration of the Member States of 15 January 2019 on the legal consequences of the Achmea judgment and on investment protection. Available at https://ec.europa.eu/info/publications/190117-bilateral-investment- treaties_en. 24 Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, SN/4656/2019/INIT, OJ L 169, 29.5.2020. Available at https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX:22020A0529(01). 25 The Council Secretariat acts as a repository of the treaty ratification process: https://www.consilium.europa.eu/ en/documents-publications/treaties-agreements/agreement/?id=2019049&DocLanguage=en. 26 This resulted in infringement against FI and UK in 2020. Available at https://ec.europa.eu/commission/presscorner/ detail/en/inf_20_859. 27 The so-called intra EU jurisdictional objection was been consistently raised by several Member States including the Slovak Republic, arguing that after the entry into the EU, the bilateral investment treaties are either invalid under Article 59 of the Vienna Convention on the Law of the Treaties (VCLT) or inapplicable under Article 30(3) VCLT. 28 Data available at https://www.energychartertreaty.org/ and 29 Eskosol S.p.A. in liquidazione v. Italian Republic , (ICSID Case No. ARB/15/50). 30 Decision on Italy’s request for immediate termination and Italy’s jurisdictional objection based on inapplicability of the Energy Charter Treaty to intra-EU disputes, dated7 May 2019, available at http://icsidfiles.worldbank. org/icsid/ICSIDBLOBS/OnlineAwards/C5106/DS12133_En.pdf. 31 For the avoidance of any doubt, the author does not concur with the arguments stated in the Decision. 32 Muszynianka Spółka z Ograniczoną Odpowiedzialnością v. Slovak Republic (PCA Case No. 2017-08), available at https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/761/muszynianka-v-slovakia.

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