This case note examines the findings of the Tribunal in the Decision on Jurisdiction
in Adamakopoulos v. Cyprus, focusing on Respondent’s objections
based on the alleged incompatibility of the BITs and the EU Treaties, and the
mass claim nature of the proceeding. The decision of the majority of the
Tribunal in dismissing the EU law objection adds to a body of investment
arbitration jurisprudence in which similar reasoning has been used to dismiss
comparable objections. However, the dissenting opinion of Marcelo Kohen is the
first time that an arbitrator, presented with an intra-EU investment
arbitration claim, has considered that the tribunal lacks jurisdiction on the
basis of the incompatibility between the relevant BITs and EU law.
Furthermore, Adamakopoulos is one of the few ‘mass claim’
arbitrations brought under the ICSID Rules. If it proceeds to the merits stage
as planned, it will provide an opportunity for the Tribunal to resolve
questions regarding the management of the procedure under the ICSID framework
with such a large group of claimants, whilst maintaining the right to be heard,
procedural equality and fairness.