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Article 11(2) is not self-judging
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Broader interpretation of Achmea cannot have any retroactive effect
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Parties disagree on whether Achmea ruling identified a pre-existing incompatibility
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Achmea ruling applies to treaties providing for application of domestic law, and therefore EU law
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Intra-EU BITs were not implicitly terminated
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BIT provisions are not discriminatory with respect to other EU investors
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Article 11(2), as lex specialis, does not require same subject matter analysis
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Croatia alleges two-fold incompatibility between BIT and EU acquis
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Member States Achmea Declarations are not part of the acquis
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Unusual conflict of laws clause prompts intra-EU jurisdictional objection; parallel cases may see similar arguments
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Acquis should be assessed as of the date of case registration, which pre-dated the CJEU’s Achmea judgment
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Monetary Gold principle is not applicable
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No particular burden of proof for jurisdictional questions turning on treaty interpretation
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