Investment arbitration: compatibility with EU law

In Slovak Republic v Achmea BV Case C-284/16, the CJEU has confirmed that an arbitral tribunal is not a national court or tribunal for the purposes of the Treaty for European Union and accordingly cannot make a reference to the Court of Justice of the European Union for the determination of points of law relating to the Treaty.

On that basis there is no means of securing the uniform application of EU law where a decision is made by an arbitral tribunal, and accordingly it is not permitted to include an arbitration clause in a Bilateral Investment Treaty between two EU member states.