Magnifier Search

Eureko v. Slovakia

Type of decisionAward on jurisdiction, arbitrability and suspension
Date of decision26 October 2010
Tribunal
Vaughan Lowe (President)
Albert Jan van den Berg
Van Vechten Veeder
Legal instrumentBIT between Czech Republic and Netherlands (1991)
Further information

Statements from this decision

You are currently viewing the statements in their context. To view them in a list, click here.
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
It may be argued that regarding an intra-EU IIT there is no incompatibility of a "free transfer" provision with EU law
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
In general, an incompatibility between an IIT and EU law is a question of the applicable law, and as such a matter for the merits; the incompatibility could be a question of jurisdiction only if it were related to the consent to arbitration as expressed in the IIT, but EU law does not prohibit investor-state-arbitration
Neither the protection by the standard of full protection and security nor the protection by prohibition of unlawful expropriation is secured under EU law
The right to bring proceedings before domestic courts of an EU member state cannot be equated with investor-state-arbitration under an IIT
An intra-EU IIT may afford wider protection to investors from specific EU countries; while this may be a violation of the EU's prohibition of discrimination, it is no reason to cancel the investor's rights under the IIT
The ruling by the ECJ in the MOX Plant case is not applicable to investor-state-disputes
While the ECJ has a monopoly on the final and authoritative interpretation of EU law, it has no interpretative monopoly which could preclude a tribunal from considering and applying EU law
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
"Same subject matter" within Article 59 VCLT has common features with the notion of "identity" within the doctrine of res judicata; on the other hand, it is not relevant whether, on the facts of a specific case, a claim might be raised under several provisions
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
In general, the VCLT does not provide for the automatic termination of treaties; the invalidity or termination must be invoked according to Article 65 VCLT
Article 59(1)(a) VCLT requires a broad incompatibility between two treaties
A state's consent to arbitration is expressed in the IIT
A claimant consents to an arbitration by commencing it
The fact that EU law may be among the applicable law does not deprive a tribunal of jurisdiction
Jurisdiction is fixed by laws and cannot be created, continued or extended by doctrines of acquiescence, waiver or estoppel
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
"Same subject matter" within Article 59 VCLT has common features with the notion of "identity" within the doctrine of res judicata; on the other hand, it is not relevant whether, on the facts of a specific case, a claim might be raised under several provisions
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
Article 59(1)(a) VCLT requires a broad incompatibility between two treaties
In general, the VCLT does not provide for the automatic termination of treaties; the invalidity or termination must be invoked according to Article 65 VCLT

Feedback

Above you will find 18 statement(s) from this decision. Please note that when viewing the statements in their context, the same statement may appear multiple times if it is relevant for more than one topic. Did we miss something? Feel free to send us your suggestions!