@article{2024:kuplewatzky:upstream_r,
title = {Upstream Review of intra-EU ICSID Arbitration and its Inherent Consequences},
year = {2024},
note = {EU Member States may have recourse to “upstream” national judicial
protection under the German Civil Procedure Code to declare
inadmissible and thereby preclude intra-EU investment arbitration
proceedings brought under the auspices of the ICSID Convention. That
remarkable conclusion by the Bundesgerichtshof (German Federal Court
of Justice) constitutes the first attempt of a higher court of an
EU Member State to render compatible the seemingly contradictory
obligations on national courts arising from EU law and the ICSID
Convention. However, even more important than the court’s conformity
assessment are the inherent consequences arising from its conclusion:
the incompatibility of the ICSID Convention with EU law and the
obligation, on all EU Member States and their institutions, to
disapply that convention in intra-EU investment arbitration matters
and to ultimately denounce it collectively.},
journal = {ZEuS Zeitschrift für Europarechtliche Studien},
pages = {349--370},
author = {Kuplewatzky, Nicolaj},
volume = {27},
number = {3}
}