Achmea | Court of Justice of the European Union Case C-284/16, Slowakische Republik v. Achmea B.V., Judgment (6 March 2018), RLM-12 |
Achmea Wathelet Opinion | Case C-284/16 Slowakische Republik v. Achmea BV, Opinion of Advocate General Wathelet, CLM–145 |
Arbitration Rules | ICSID Rules of Procedure for Arbitration Proceedings 2006 |
Article 11(2)-(3) Meeting Minutes | Minutes of the meeting with the Austrian representatives regarding the interpretation of Article 11 paragraph 2 and 3 of the Agreement on the promotion and protection of investment concluded with Austria, p. 1, 14 February 2018, C-225 |
BIT or Treaty | Agreement between the Republic of Austria and the Republic of Croatia for the Promotion and Protection of Investments, which entered into force on 1 November 1999 |
C-[#] | Claimants' Exhibit |
CETA | Comprehensive Economic and Trade Agreement between Canada and the EU and its Member States |
CJEU | Court of Justice of the European Union |
CETA Opinion | CJEU Opinion 1/17, EU:C:2019:341, FJ-41 |
Cl. Mem. | Claimants' Memorial on Croatia's Preliminary Objections to Jurisdiction dated 29 March 2019 |
Cl. PHB1 | Claimants' Post Hearing Brief dated 18 October 2019 |
Cl. PHB2 | Claimants' Post-Hearing Reply Brief dated 22 November 2019 |
Cl. Rej. | Claimants' Rejoinder on Jurisdiction dated 28 April 2020 |
Cl. Reply | Claimants' Reply Submission on Croatia's Preliminary Objections to Jurisdiction dated 7 June 2019 |
CLM-[#] | Claimants' Legal Authority |
Declarations | (i) the declaration by 22 Member States of the European Union on the legal consequences of the Judgment of the Court of Justice of the European Union in the Achmea case; (ii) the declaration by five EU Member States on the legal consequences of Achmea ; and (iii) the declaration by Hungary on the legal consequences of Achmea |
GATS | World Trade Organization General Agreement on Trade in Services |
Hearing | Hearing on Jurisdiction held from 20 August 2019 through 21 August 2019 |
ICSID Convention | Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965 |
ICSID or the Centre | International Centre for Settlement of Investment Disputes |
R-[#] | Respondent's Exhibit |
Resp. Mem. | Respondent's Preliminary Objections to Jurisdiction dated 29 March 2019 |
Resp. PHB1 | Respondent's Post Hearing Brief dated 18 October 2019 |
Resp. PHB2 | Respondent's Reply Post-Hearing Brief dated 22 November 2019 |
Resp. Reply | Respondent's Reply to the Claimants' Submission on its Preliminary Objections to Jurisdiction dated 7 June 2019 |
Resp. Request | Respondent's Preliminary Objections to Jurisdiction and Request to Suspend the Proceedings on the Merits dated 21 December 2018 |
RLM-[#] | Respondent(s)'s Legal Authority |
TEU | Treaty on European Union |
TFEU | Treaty on the Functioning of the European Union |
Tr. Day [#], [page:line] | Transcript of the Hearing |
Tribunal | Arbitral tribunal constituted on [date] |
UniCredit 2018 Decision | UniCredit Bank Austria AG and Zagrebačka banka d.d. v. Republic of Croatia, ICSID Case No. ARB/16/31, Decision on the Respondent's Article 9 Objection to Jurisdiction, 12 October 2018, CLM-136 |
UniCredit 2020 Decision | UniCredit Bank Austria AG and Zagrebačka banka d.d. v. Republic of Croatia, ICSID Case No. ARB/16/31, Decision on the Respondent's Application for Reversal of the Article 9 Decision and Decision on Jurisdiction and Admissibility, 24 March 2020, RLM-271 |
VCLT | United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331 |
WTO | World Trade Organization |
• Consolidated Index of Supporting Documentation filed with Croatia's pleadings as at 21 December 2018;
• Exhibits R-0001 through R-0005; and
• Legal Authorities RLM-0001 through RLM-0032.
• Legal Opinion of Professor Paul Craig (Hon QC), dated 29 March 2019 ("Craig Opinion");
• Index of the Legal Authorities to Professor Paul Craig's Expert Opinion, with Legal Authorities PC-0001 through PC-0060;
• Consolidated Index of Supporting Documentation Filed with Croatia's pleadings (as of 29 March 2019);
• Exhibits R-0032 through R-0038; and
• Legal Authorities RLM-0001 through RLM-0165.
• Legal Opinion of Sir Francis Jacobs KCMG, QC ("Jacobs Opinion"), with Exhibits FJ-0001 through FJ-0033;
• Consolidated Index of Supporting Documentation Filed with Addiko's Pleadings (as at 29 March 2019);
• Exhibits C-0222 through C-0226; and
• Legal Authorities CLM-0145 through CLM-0184.
• Supplemental Legal Opinion by Sir Francis Jacobs KCMG, QC ("Jacobs Supp. Opinion"), with Exhibits FJ-0034 through FJ-0045; and
• Legal Authorities CLM-0185 through CLM-0197.
• Second Expert Opinion of Professor Paul Craig (Hon QC) ("Craig Supp. Opinion"), with an Index of Legal Authorities to Professor Paul Craig's Second Expert Opinion and Legal Authorities PC-0061 through PC-0066;
• Exhibits R-0039 through R-0041; and
• Legal Authorities RLM-0166 through RLM-0176.
Tribunal :
Ms. Jean E. Kalicki President
Prof. Guido Santiago Tawil Arbitrator
Mr. Miloš Olík Arbitrator
ICSID Secretariat :
Mr. Alex Kaplan Secretary of the Tribunal
For the Claimants :
Mr. Franz Schwarz WilmerHale
Mr. Gary Born WilmerHale
Mr. Naboth van den Broek WilmerHale
Ms. Danielle Morris WilmerHale
Mr. Daniel Costelloe WilmerHale
Mr. Justine Nguyen WilmerHale
Mr. Jose Romero WilmerHale
Mr. Amy Titus WilmerHale
Mr. Stefan Choi Addiko Bank AG
For the Respondent :
Mr. Robert G. Volterra Volterra Fietta
Mr. Graham Coop Volterra Fietta
Ms. Angela Ha Volterra Fietta
Mr. Govert Coppens Volterra Fietta
Ms. Eva Paloma Treves Volterra Fietta
Court Reporter :
Ms. Dawn K. Larson B&B Reporters
The critical date doctrine … acts as a time constraint in the context of determining the relevance or weight of evidence in cases concerning issues of public international law. In short, the doctrine or principle renders evidence, which comes into being after the critical date and is self-serving and intended by the party putting it forward to improve its position in the arbitration, as being of little, if any weight … This suggests that if post-critical date evidence is sought to be adduced, it should be consistent with and a continuation of what the pre-existing position establishes. Its function is to corroborate and explain. To the extent that it contradicts what has been established by the pre-existing position to give the party seeking to rely on it an evidential advantage in its case, it should not be admitted.145
Applying the reasoning of the Singaporean Court, Addiko argues that since the critical date for determining this Tribunal's jurisdiction is 27 September 2017, the Declarations are not irrelevant to prove a joint understanding between Croatia and Austria as to the alleged incompatibility of the BIT with the EU acquis.146
• Addiko concludes on the basis of this evidence that at no time relevant for this Tribunal's determination of its jurisdiction was there an agreement between Austria and Croatia that the BIT was incompatible with the EU acquis. Accordingly, Addiko says that even if the Declarations arguendo were capable in principle of having significance under VCLT Article 31(3)(a), they are irrelevant to this Tribunal's determination of its jurisdiction under Article 9 of the BIT.149
Does Article 344 TFEU preclude the application of a provision in a bilateral investment protection agreement between Member States of the European Union (a so-called intra-EU BIT) under which an investor of a Contracting State, in the event of a dispute concerning investments in the other Contracting State, may bring proceedings against the latter State before an arbitral tribunal where the investment protection agreement was concluded before one of the Contracting States acceded to the European Union but the arbitral proceedings are not to be brought until after that date?150
Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.151
Amministrazione Delle Finanze Dello Stato v. Denkavit Italiana S.r.l., Case 61/79, 27 March 1980, p. 1223, CLM-110; Ángel Barreira Pérez v. Instituto Nacional de la Seguridad Social (INSS), and Tesorería General de la Seguridad Social (TGSS), C-347/00, 3 October 2002, ¶ 44, RLM-140; Craig Opinion ¶61; Access to German Minority Schools in Upper Silesia, Advisory Opinion, PCIJ (series A/B) No. 40, 15 May 1931, ¶ 57, RLM-141; Lady Hale, President of The Supreme Court of the United Kingdom, "Devolution and The Supreme Court –20 Years On", Scottish Public Law Group 2018 Edinburgh, 14 June 2018, p. 15, R-35.
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
(1) Does Article 344 TFEU preclude the application of a provision in a bilateral investment protection agreement between Member States of the European Union (a so-called intra-EU BIT) under which an investor of a Contracting State, in the event of a dispute concerning investments in the other Contracting State, may bring proceedings against the latter State before an arbitral tribunal where the investment protection agreement was concluded before one of the Contracting States acceded to the European Union but the arbitral proceedings are not to be brought until after that date?
If Question 1 is to be answered in the negative:
(2) Does Article 267 TFEU preclude the application of such a provision?
If Questions 1 and 2 are to be answered in the negative:
(3) Does the first paragraph of Article 18 TFEU preclude the application of such a provision under the circumstances described in Question 1?295
Articles 18, 267 and 344 TFEU must be interpreted as not precluding the application of an investor/State dispute settlement mechanism established by means of a bilateral investment agreement concluded before the accession of one of the Contracting States to the European Union and providing that an investor from one Contracting State may, in the case of a dispute relating to investments in the other Contracting State, bring proceedings against the latter State before an arbitral tribunal.296
By its first and second questions, which should be taken together, the referring court essentially asks whether Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the BIT, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.297