The German courts offer protection from intra-EU arbitrations

The German Federal Court of Justice confirmed in three related cases that EU member states may apply to it to hold intra-EU investment arbitrations based on the ECT and filed with the ICSID inadmissible (the so-called “upstream national judicial protection”). The Federal Court also clarified the position of German law on the matter. The three related cases led to inconsistent lower court decisions regarding the admissibility of EU member states’ requests to hold intra-EU ECT ICSID arbitrations inadmissible. In its decision, the court gave primacy to EU law, as interpreted by the CJEU in decisions like Achmea and Komstroy. The judgments concerned are available here (in German).