Courts in three separate jurisdictions have delivered a consistent message: intra-EU arbitral awards remain enforceable beyond the borders of the European Union, according to an analysis published by Freshfields.

The international law firm's report, titled "Three jurisdictions, one message: Intra-EU arbitral awards remain enforceable beyond EU borders," examines decisions in which national courts declined to treat awards arising from disputes between EU member states as unenforceable merely because of the European Court of Justice's position on intra-EU arbitration.

The issue has generated considerable uncertainty since the ECJ's landmark ruling in Achmea and its subsequent extension in Komstroy, which called into question the compatibility of intra-EU investor-state arbitration with EU law. Practitioners have since wrestled with whether national courts outside the EU — and even some within — would refuse enforcement of intra-EU awards on public policy grounds derived from those judgments.

The Freshfields analysis indicates that courts in three jurisdictions have now answered that question in favour of enforcement. The common thread: the Achmea and Komstroy line of ECJ jurisprudence, which concerns the relationship between EU law and intra-EU bilateral investment treaties, does not automatically supply grounds to resist enforcement of arbitral awards before courts outside the EU framework.

For practitioners, the practical consequence is significant. Parties holding intra-EU awards now have judicial authority in multiple non-EU jurisdictions supporting their ability to enforce those awards against assets located abroad. Counsel advising award creditors can point to this body of decisions when pursuing enforcement, while debtors resisting enforcement on EU law grounds face a growing — and consistent — body of authority against them. Conversely, parties structuring arbitration agreements involving EU member state entities may take comfort that an intra-EU seat does not necessarily render the resulting award a dead letter internationally.

The decisions also carry implications for the wider debate over the enforceability of awards arising from the Energy Charter Treaty in intra-EU disputes, an area in which courts across multiple jurisdictions have issued divergent rulings in recent years.

Freshfields' conclusion is unambiguous. Enforcement of intra-EU arbitral awards remains viable beyond EU borders, and courts asked to refuse enforcement on the basis of EU law alone have declined to do so.