Almost two years have passed since the CJEU delivered its ruling in
the Achmea case. Since then, the topic of intra-EU investment
arbitration has been frequently debated by academics and practitioners.
However, only two national courts in EU Member States have rendered judgments
in which the CJEU’s findings in Achmea have been subject to
interpretation; the German Bundesgerichtshof (BGH) which set
aside the arbitral award between Slovakia and Achmea B.V., and the Swedish Svea
Court of Appeal which dismissed the challenge of the arbitral awards between
Poland and PL Holdings. This article examines the interpretation of the CJEU’s
judgment in Achmea by the BGH and the Svea Court of Appeal,
focusing on the reasoning of the latter. The article seeks to explain the
different outcomes in light of, in particular, differences in Slovakia’s and
Poland’s respective conduct during the arbitral proceeding, and differences
between German and Swedish law. This article argues that the Svea Court of
Appeal’s approach was fully reconcilable with the BGH’s judgment as well as EU
law as interpreted by the CJEU in Achmea.