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?

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.