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RECONCILING INTERNATIONAL INVESTMENT LAW AND EUROPEAN UNION LAW IN THE WAKE OF ACHMEA

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Abstract

The decision of the Court of Justice of the European Union in Slovak Republic v Achmea dealt a major blow to the predictability of the legal regime for the protection of foreign investments, whilst failing to offer a realistic, clear and sustainable solution for the protection of investments within the European single market. Commentators have mainly considered its implications from the perspective of the European Union or International Investment Law, and the potential conflict of regimes. This article offers a different approach, arguing that a reading of Achmea based on a moderate version of legal pluralism could adequately respond to the legitimate concerns about the case from both international and European legal perspectives. It is argued that the imprecision of the decision is in fact constructive ambiguity, allowing a sufficient margin of appreciation for all stakeholders and avoiding direct confrontation between the European and international legal orders. Recent developments, such as the innovative EU agreement for the termination of intra-EU BITs, point to new opportunities for ordering pluralism in the Achmea saga.

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L'affaire Achmea ou les conflits de logiques
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Opinion 1/17: Has the EU Made Peace with Investment Arbitration?
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The External Dimension of EU Investment Law: Jurisdictional Clashes and Transformative Adjudication
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The Law Governing International Arbitration Agreements: An International Perspective
  • Born
La conciliation des lois
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ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability
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considering arguments of termination and priority together, that a survival clause contained in the France-Hungary BIT would render
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Commentary to Article 30
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UP and CD v Hungary) paras 252-253, finding that the simple choice of an ICSID arbitration meant that ‘the present case differs in determinative aspects from the case in Achmea
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Forum shopping et fragmentation du droit international: le regard de l'internationaliste publiciste’ in Berge
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ICSID Case No ARB/15/50, Decision on Italy's request for immediate termination and Italy's jurisdictional objection based on inapplicability of the ECT to intra-EU disputes
  • S P A Eskosol
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Le droit comme instrument de progrès? Sur l'idée d'ingénierie juridique
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