The Higher Regional Court of Hamm (Oberlandesgericht Hamm, OLG Hamm) has asked the Court of Justice of the European Union to clarify whether the Achmea and Komstroy rulings bar a German court from hearing a tort claim connected to the enforcement of an ICSID award outside the European Union.

The referral, reported by Wolters Kluwer, raises the question of how far the CJEU's case law reaches beyond the EU's borders. The OLG Hamm seeks a preliminary ruling on the interplay between EU law, the ICSID Convention, and national tort liability for investors pursuing intra-EU disputes through arbitration.

The Achmea foundation

The questions build on the CJEU's 6 March 2018 judgment in Case C-284/16 (Slovak Republic v. Achmea BV), which held that the investor-state arbitration clause in the Netherlands-Slovakia bilateral investment treaty was incompatible with EU law. The court ruled that arbitration tribunals applying EU law in intra-EU disputes undermine the autonomy of the EU legal order.

The decision invalidated the underlying award and required EU member state courts to refuse recognition of arbitral decisions flowing from intra-EU BITs. Achmea triggered a wave of post-award litigation across Europe and prompted EU member states to terminate intra-EU BITs through a 2019 declaration.

The Komstroy extension

On 2 September 2021, the CJEU answered the Paris Court of Appeal's questions in Case C-741/19 (Republic of Moldova v. Komstroy LLC), extending Achmea's reasoning to the Energy Charter Treaty's investor-state arbitration clause. The court held that arbitral tribunals seated in an EU member state cannot apply EU law in a way that bypasses EU court jurisdiction.

Komstroy crystallized the rule that intra-EU investment arbitration under multilateral instruments falls within the Achmea prohibition.

What does the OLG Hamm want to know?

The OLG Hamm's request targets a narrow but consequential question: do the Achmea and Komstroy prohibitions reach tort claims arising in EU member states when the underlying dispute concerns ICSID enforcement pursued outside the Union?

A German investor who lost an ICSID award based on an intra-EU BIT may have no enforcement avenue in EU courts after Achmea. In some cases, the response has been tort claims in national courts, alleging that law firms, arbitrators, or adverse parties caused damage by relying on agreements the CJEU has since declared incompatible with EU law.

The OLG Hamm appears to be testing whether EU law's prohibition on intra-EU investment arbitration also shields third parties from civil liability in connection with such proceedings.

Why does the extraterritorial question matter?

The referral's significance lies in its extraterritorial dimension. Achmea and Komstroy concerned the recognition and enforcement of awards within the EU. The OLG Hamm's question goes further: when an ICSID award is enforced in a third state under the ICSID Convention, can a German court entertain a related tort action?

The answer will determine whether the Achmea doctrine creates a comprehensive immunity from civil suit in EU courts, or whether national tort law remains available to address conduct connected to intra-EU arbitration.

What are the practical stakes for practitioners?

For arbitration practitioners, the referral introduces fresh uncertainty into a field the CJEU has spent seven years trying to settle. If the CJEU holds that national tort claims connected to intra-EU arbitration are inadmissible, defendants including law firms and arbitrator-appointed experts may face reduced exposure in EU forums.

Investors holding intra-EU BIT claims will watch the file closely. A broad reading of Achmea and Komstroy would channel more disputes into non-EU fora, including ICSID proceedings in Washington, while foreclosing domestic tort remedies in EU member states.

The CJEU's ruling on the OLG Hamm's questions could reshape the procedural architecture of intra-EU investment disputes. Until the court answers, national courts across the EU will continue to manage Achmea-related litigation on a case-by-case basis.