Claimants receive full costs order for jurisdictional phase

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Monetary Gold principle does not bar jurisdiction

Discrimination arguments rejected

Dissenter finds Achmea ruling “predictable and likely”, suggesting already-existing incompatibility as of September 2017

Post-Achmea evidence does not change the conclusion

Pre-Achmea evidence suggests no incompatibility

Achmea judgment was not part of EU acquis in September 2017; judgment cannot affect BIT’s compatibility with EU law

Majority views EU law as fact, not law

Article 11(2) is lex specialis, and requires consideration of content of EU law at commencement of arbitration

Croatia alleges incompatibility between BIT and CJEU’s exclusive role in EU legal order, as confirmed by Achmea ruling

Case is one of several parallel banking claims against Croatia

Background: heir to 300-year old meat processing business reacquires previously socialized companies in war-torn post-communist Croatia

Principle of good faith cannot give rise to an arbitration agreement; no extraordinary circumstances exist that would justify disapplying the EU law principle of mutual trust in this case

Possibility to refer preliminary question to the CJEU through assistance from the courts is purely hypothetical, and insufficient to respond to EU law concerns

BGH sees no issue of fundamental significance due to alleged need to request a preliminary ruling from the CJEU

The fact that the BIT’s applicable law provision does not designate the law of the host state is irrelevant

Dispute may involve the interpretation and application of EU law

OLG correctly identified applicable EU law principles

Appeal is only admissible if the underlying complaint raises a matter of fundamental significance, or calls for a decision to ensure uniform adjudication

Background: Lower court declares that intra-EU BIT arbitration is inadmissible

No obstacles to the OLG’s jurisdiction

Achmea judgment is a “landmark decision”, applicable to all intra-EU BITs

Good faith does not require a continued application of the BIT’s arbitration clause

The BIT’s arbitration clause violates EU law, according to the CJEU’s Achmea ruling

CJEU’s CETA Opinion does not influence the outcome of the decision

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