최근의 EU 회원국간 양자투자협정과 투자자-국가 분쟁 동향 - Achmea BV v. Slovakia 사건을 중심으로 - = Achmea BV v. Slovakia: The End of the Intra-EU BIT and the Investor State Dispute?

다국어 초록 (Multilingual Abstract)

After the adoption of the Lisbon Treaty, the European Union's Common Commercial Policy now belongs to the exclusive competence area of the EU, including the foreign direct investment (FDI) policy. Regarding the bilateral investment protection treaties (BITs) between the EU Member States, the European Commission is of the view that such BITs should be discarded. On March 6, 2018, the Court of Justice of the European Union (CJEU) held in the Achmea BV v. Slovakia case that a BIT between the EU Member States, as well as arbitral awards based on that BIT, is not subject to request for preliminary rulings under the Treaty on the Functioning of the European Union (TFEU), and thus they are not compatible with the EU law. However, the judgment did not silence the controversy. Instead, many people questioned the legal reasoning and the legitimacy of judgment, and therefore the problem is still ongoing.

참고문헌 (Reference)

1 Clement Fouchard, "The Judgment of the CJEU in Slovak Republic v. Achmea? A Loud Clap of Thunder on the Intra-EU BIT Sky!"

2 "PCA Case No. 2008-13, Eureko BV v. Slovak Republic, Final Award"

3 "PCA Case No. 2008-13, Eureko BV v. Slovak Republic, Award on Jurisdiction, Arbitrability and Suspension"

4 "Oberlandesgericht Frankfurt am Main Beschl. v. 18.12.2014, Az.: 26 Sch 3/13"

5 Belgian Ministry of Foreign Affairs Press, "Minister Reynders submits request for opinion on CETA"

6 "Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 326/2012"

7 European Commission Press, "Commission asks Member States to terminate their intra-EU bilateral investment treaties"

8 "Case C-284/16, Slowakische Republik v Achmea BV, Opinion of Advocate General Wathelet"

9 "Case C-284/16, REQUEST for a preliminary ruling under Article 267 EU 기능조약 from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 3 March 2016, received at the Court on 23 May 2016, in the proceedings, Slowakische Republik (Slovak Republic) v Achmea BV"

10 Nikos Lavranos, "Black Tuesday: the end of intra-EU BITs"

11 Philippe Pinsolle, "Arbitration: The Achmea v Slovakia Judgment of the CJEU, is it really the end of Intra-EU Investment Treaties?"