GERMANY Trends and Developments Contributed by: Tanja Pfitzner and Fabian von Schlabrendorff, Pfitzner Legal
Following the ECJ’s decisions in Achmea and Kom- stroy (C-741/19), intra-EU investment treaty awards have become increasingly difficult to enforce within the EU. As a result, investors have turned to non-EU jurisdictions – most notably the USA – to seek recog - nition and enforcement of such awards against EU Member States. This can lead to a spiral of applications for injunctions to prevent the other party from taking further legal action. A particularly illustrative example is the recent multi- jurisdictional dispute involving the German energy company RWE, which obtained an arbitral award against Spain under the ECT. RWE initiated enforce - ment proceedings before the US District Court for the District of Columbia. In response, Spain applied to the Essen Regional Court (2 O 447/22), located at RWE’s headquarters, for an anti-enforcement (anti-suit) injunction to prevent RWE from continuing enforce - ment proceedings outside the EU. RWE responded by applying to the US court for an anti-anti-suit injunction, requesting that Spain be enjoined from pursuing its anti-enforcement applica - tion in Germany. Spain, in turn, sought an anti-anti- anti-suit injunction before the Essen Regional Court, aimed at blocking RWE’s application in the USA. While the Essen Regional Court dismissed Spain’s application, the Higher Regional Court of Hamm (I-9 W 15/23) reversed that decision on appeal and granted the anti-anti-anti-suit injunction – the first of its kind in German investment arbitration, on the grounds of Germany’s judicial sovereignty and the applicant’s right of access to justice. Spain’s initial anti-enforcement request was ultimately rejected by the Essen Regional Court as inadmissi - ble. The Court reaffirmed the long-standing position under German law that anti-suit injunctions – wheth - er directed at foreign courts or private parties – are incompatible with the principles of territoriality and state sovereignty. It emphasised that it would be con - tradictory for German courts to reject the enforceabil - ity of foreign anti-suit injunctions, only to issue such injunctions themselves. Moreover, the Court clarified
that the ECJ’s Achmea and Komstroy rulings do not impose an obligation on German courts to prevent the enforcement of ICSID awards outside the EU, as EU law only requires Member States to block such enforcement within EU borders. The US Court has since enforced the ICSID award. Courts in other EU Member States have taken a simi - lar stance to that of the Essen Regional Court. In two similar multi-jurisdictional disputes, the District Court of Amsterdam declined to interfere with enforcement proceedings on the ground that creating an addition - al forum to challenge an ECT award is, prima facie, impermissible under the New York Convention. AI in International Arbitration Generative artificial intelligence (AI) is transforming industries across the globe – including the legal sec - tor and the field of international arbitration. Significant developments are occurring not only on the user side, but also among arbitral institutions and legal service providers, and within the broader legal ecosystem. As AI tools continue to evolve, they are expected to shape the future of international arbitration by enhanc - ing accessibility, procedural efficiency and transpar - ency. At the same time, the increasing integration of AI into legal processes will likely prompt arbitral institutions and governments to issue new guidelines and regulatory frameworks to ensure that AI is used responsibly, ethically and safely. The DIS Spring Conference 2025 addressed this dynamic and rapidly developing field in a well-attend - ed and thought-provoking forum. Through case stud - ies, panel discussions and expert contributions, the conference explored both the opportunities and the challenges posed by generative AI in arbitration. It also highlighted the shared responsibility of all actors in the arbitral process – arbitrators, counsel, institu - tions and parties alike – to uphold ethical standards and safeguard privacy in the use of AI technologies. The Rule of Law In the midst of a turbulent global landscape, renewed attention is being paid to the principle of the rule of law – a concept that, for decades, was largely taken for granted in Western Europe.
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