Jurisdiction(s):
United Kingdom

Swedish Supreme Court limits Achmea/Komstroy: ECT arbitration valid for non‑EU investor; two‑step test for partial annulment with res judicata assessment (Blue Gas Holding)

Published on: 23 June 2025

Published by a LexisNexis Arbitration expert

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‘Blue Gas Holding’ (Republic of Poland v PD, Swedish Supreme Court Case No. T 555-24) What are the practical implications of this case?

The Swedish Supreme Court has signalled a pro‑arbitration posture in Blue Gas Holding, offering clearer direction on how far the Court of Justice’s Achmea doctrine extends. Put briefly, where a non‑EU investor’s discrete stake within a broader investment can be identified separately from EU investors’ interests, a tribunal seated in Sweden may take jurisdiction over that individual claim. Consequently, Sweden‑seated tribunals could now accept jurisdiction in scenarios where some tribunals, until recently, might have reached the opposite conclusion. Nonetheless, determining jurisdiction demands a rigorous examination of res judicata, a factor that can complicate proceedings and outcomes. Following Blue Gas Holding, a key issue in mixed investor disputes—those involving both EU and non‑EU participants—is whether the non‑EU investors’ claims can be delineated and permitted to advance without inadvertently causing the EU investors’ claims to become res judicata, whether in Sweden or in another pertinent legal order. The practical task, therefore, is to structure and substantiate the non‑EU claims so that they remain distinct in law and fact, while avoiding prejudice to any parallel EU‑linked claims and prior determinations...

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