This article focuses on the
ways in which investment tribunals constituted under intra-EU BITs and the
Energy Charter Treaty (in an intra-EU dispute) have reacted to the Court of
Justice’s Achmea judgment of 6 March 2018. The first part of the article maps
out the existing intra-EU arbitrations in which the issues arising from Achmea appear in one form or another. We then take a critical look
at how the disputing parties have used Achmea in their argumentation and how the investment tribunals have
dismissed these arguments and upheld their jurisdiction. The second part of the
article is analytical. When the tribunals uphold their jurisdiction and decide
on the merits, they knowingly deliver an award, which is unenforceable in the
Respondent State and the entirety of the EU. By drawing parallels with
decisions rendered by other international tribunals, we argue that the
rendering of potentially unenforceable awards is not specific to intra-EU
investment disputes. We then look at why international tribunals render potentially
unenforceable awards. The third part of the article presents several
suggestions of how intra-EU investment tribunals should tackle the Achmea conundrum, either by declining their jurisdiction pursuant to
judicial comity or upholding their jurisdiction but dismissing the cases as
inadmissible.