EU: Achmea Revisited – Opinion of AG on Individual Arbitration Agreements | ZFZ Postcard Case
In the case of Poland v. PL Holdings Sàrl, Advocate General Kokott on 22 April 2021 delivered her opinion on Sweden’s Supreme Court’s Request for a Preliminary Ruling under article 267 TFEU.
In that case, the investor argues that because Poland entered an appearance in an investment arbitration without raising any jurisdictional objections, an individual arbitration agreement was concluded.
Following the ECJ’s judgment in Achema, the Opinion sets out that the danger of misapplying EU law exists also if the arbitration agreement between a foreign investor and the host state is individually agreed. This danger, accordingly, does not exist when the agreement is between parties on equal footing, such as in commercial arbitration, but only if the dispute is related to the exercise of sovereign power. Only if the legal system at the seat would provide for comprehensive review of the award and the possibility of turning to the ECJ for a preliminary ruling, an arbitration agreement could be valid.
Read the full opinion here.