On 6 March 2018, the Court of Justice of the European Union
(CJEU) rendered its much-awaited judgment in Slovak Republic v Achmea, in which it found that the arbitration clause contained in
Article 8 of The Netherlands-Slovak Republic bit was incompatible with EU law.
While the implications of this decision are not entirely clear yet, it is generally agreed that it is likely to have
an impact on pending and future arbitration proceedings initiated pursuant to
arbitration clauses contained in intra-EU bilateral investment treaties (BITs).
This article illustrates the arguments presented at the hearing that took place
before the CJEU on 19 June 2017. The contribution addresses two main points. First, it lays
out the arguments of the disputing parties, the Slovak Republic and Achmea. Second, it sheds light on the positions of the several
interested EU Member States as argued at the hearing in Luxembourg. At the
hearing, the interested Member States presented opposing views on the
interpretation of Articles 344, 267, and 18 TFEU. This article facilitates the
understanding of the different ways in which these Articles are interpreted,
and have been interpreted, by the Member States and sets out their arguments in
favour or against intra-EU BITs. The multiplicity of the views expressed at the
hearing may assist the interested audience in understanding how the Advocate
General Wathelet and the CJEU could reach such different conclusions on the
same case.