IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
46
PE 703.592
In the international system of international courts, this issue becomes more complicated. In principle,
decisions from international courts are effective in the subsystem of the international sphere they
operate.
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Hence, the recent decision of the European Court on
Achmea
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exemplifying the extent and limits of
the courts in relation to the advance termination of treaties subject to sunset clauses. Given that
arbitration tribunals operated in a different subsystem of the
international sphere, the precedent of
Achmea does not bind such tribunals. To exemplify this, it is illustrative to reflect on the way several
tribunals treated the
Achmea
decision. In particular, in the
Strabag SE, Raiffeisen Centrobank AG and
Syrena Immobilien Holding AG v. Poland
, the Respondent objected to the jurisdiction of the
investment
tribunal on the grounds that the investment treaty should be deemed to be terminated based on
Poland’s subsequent accession to the TEU and TFEU. However, the investment tribunal held that two
treaties such as the European Treaties and a Bilateral Investment Treaty could not have the ‘same
subject matter’, because these treaties are not ‘institutionally linked’ or ‘part of the same regime’.
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In line with
the previous statement, a legal working paper summarizes the ways different arbitration
tribunals circumvented the precedent of Achmea
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