Prof. Raeschke-Kessler on “The Enforcement and Annulment of arbitral awards under Investment Treaties"
On the 2nd of February 2024, Professor Hilmar Raeschke-Kessler delivered an illuminating lecture on the Enforcement and Annulment of arbitral awards under Investment Treaties. Professor Raeschke-Kessler, a distinguished figure in both national and international arbitration circles, has long been recognized for his expertise in the field.
Commencing with a poignant invocation of Descartes' cogito, ergo sum, the lecture embarked upon a journey through European legal history, culminating in a nuanced examination of contemporary legal frameworks. Professor Raeschke-Kessler astutely dissected the Vienna Convention on the Law of Treaties, notably emphasizing Article 31, which delineates the imperative of interpreting treaties in good faith within the context of their provisions.
In elucidating the interplay between international public law and civil law principles, the discourse transitioned to the practice of European Union law, particularly elucidating the jurisprudential doctrines governing primary and secondary EU legal instruments, as established by the Court of Justice of the European Union (CJEU).
A focal point of the lecture centred on the contentious Achmea case, which served as a watershed moment in intra-EU investment disputes arising from Bilateral Investment Treaties (BITs) among Member States. Professor Raeschke-Kessler cogently expounded upon Article 5 of the Treaty on European Union (TEU), underscoring the principles of conferral, subsidiarity, and proportionality, and their implications for the hierarchical relationship between Member States and EU institutions.
In light of the Achmea precedent, subsequent judicial pronouncements such as Komstroy, PL Holdings, and European Food were meticulously analysed, revealing the concomitant invalidation and unenforceability of arbitral awards emanating from BITs or Multilateral Investment Treaties (MITs) within the EU framework.
The ramifications of the Achmea ruling reverberated across national jurisdictions, as evidenced by Germany's Bundesgerichtshof's (BGH) alignment with the CJEU's stance, culminating in the rejection of arbitral awards under the rubric of ordre public. The impending adjudication of Achmea's constitutional challenge before the German Constitutional Court portends seismic implications for the legal landscape of the EU.
Moreover, the lecture delved into the intricate realm of intra-EU investment arbitrations post-Achmea, with notable scrutiny afforded to the divergent interpretations vis-à-vis the jurisdictional ambit of the CJEU's pronouncements. Critiques of the CJEU's Achmea jurisprudence encompassed concerns regarding its fidelity to established legal canons, including the Vienna Convention on the Law of Treaties, and its purported encroachment upon the sovereign prerogatives of Member States.
Additionally, the discourse broached the concept of ultra vires, emblematic of acts undertaken without legal authority, as elucidated by the German Constitutional Court in its landmark PSPP ruling. The implications of such judicial pronouncements extend beyond the realm of investment arbitration, inviting introspection into the overarching principles of legal supremacy within the EU legal order.
In conclusion, we are eager to see how the Bundesverfassungsgericht this year will decide upon the Achmea appeal.
In final words, as members of the class of 2024, we express our profound gratitude to Professor Hilmar Raeschke-Kessler for his insights, erudition, and mentorship, which have indelibly enriched our academic pursuits in the field of international dispute resolution and we are honoured to be his very last audience.
Lucija Mrkša, IDR LL.M Candidate 2023/2024