Practical Law

Now that the dust has settled following the Achmea, Komstroy, Micula and PL Holdings judgments of the Court of Justice of the EU (CJEU), in which it banned intra-EU investor-state arbitration disputes (ISDS) based on bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT) within the EU, the wider, decentralised implementation of this ISDS … Continue reading The decentralised implementation of the ISDS ban by EU domestic courts →

In the recently issued Green Power Partners K/S, SCE Solar Don Benito APS v. Kingdom of Spain award, for the first time ever, an SCC arbitral tribunal established under the Energy Charter Treaty (ECT) declined jurisdiction by accepting the Achmea jurisdictional objection.

On 25 January 2022 the Court of Justice of the European Union (ECJ) handed down its judgment in the appeal procedure in the well known Micula case.

As has been widely reported, the recent Komstroy judgment of the Court of Justice of the EU (CJEU) in which it extended the application of its previous Achmea judgment to the Energy Charter Treaty (ECT) by determining that investor-state arbitration within the EU is incompatible with EU law, raises the fundamental question whether there is … Continue reading Is there still a reason d’etre for the ECT after the CJEU’s ban on intra-EU ECT arbitration? →

In a recent opinion (not yet available in English), the Advocate General of the Court of Justice of the European Union (ECJ), General Szpunar, opined that the investor-state arbitration system under the Energy Charter Treaty (ECT) is incompatible with EU law. Despite the fact that the now infamous Achmea judgment does not refer anywhere to the ECT, … Continue reading Finishing the Achmea-job: how the European court gradually suffocates the ECT →

In a recent, still unpublished award, India lost an arbitration dispute initiated by Vodafone because India had imposed a hefty tax bill of several billion dollars retroactively.

Following the now infamous Achmea judgment of the Court of Justice of the European Union (CJEU) in March 2018, which declared the use of the investor-state arbitration clause in the Netherlands-Czechoslovakia bilateral investment treaty (BIT) (as it then was) incompatible with EU law, the EU member states quickly issued political declarations in which they announced … Continue reading Quo vadis investment protection within the EU? →

The global health crisis caused by the COVID-19 pandemic not only stretches health systems beyond their maximum capacities, but the pandemic is also causing an economic crisis that could exceed the magnitude of the Great Depression.

As required by Regulation 1219/2012, the so-called Grandfathering Regulation, the European Commission recently published a report regarding the legal status of the approximately 1,300 bilateral investment treaties (BITs) that EU member states have concluded with third states, covering the period from 2013 until the end of 2019. A closer analysis of the report shows that … Continue reading Have member state BITs changed since 2013? →

In a recent judgment, the UK Court of Appeal ruled, in the planning decision regarding the expansion of Heathrow airport with a third runway, that the UK government failed to take into account its own firm policy commitments on climate change under the Paris Agreement. Consequently, the Court of Appeal ordered the UK government to … Continue reading Using the Paris Agreement in arbitrations →

On 24 October 2019, the European Commission announced that EU member states have reached agreement on a plurilateral treaty for the termination of all of the approximately 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political declarations of member states, issued in January this year, in which they recognised the consequences from the … Continue reading Game over for intra-EU BITs →

In an ongoing NAFTA Chapter 11 investor-state dispute (Tennant Energy v Canada), the claimant raised the rather novel question about whether the EU General Data Protection Regulation (GDPR) was applicable to arbitration proceedings. Tennant Energy had, amongst other things, referred to the fact that one of the arbitrators, Sir Daniel Bethlehem QC, was a UK … Continue reading The need for a Data Protection Protocol for arbitration proceedings →

On 30 April 2019, the Court of Justice of the EU (CJEU) issued its long-awaited Opinion 1/17 regarding the question raised by Belgium of whether the investment court system (ICS), which encompasses a tribunal and appellate tribunal, is compatible with EU law. The approval of the CJEU not only removes the remaining obstacle for the … Continue reading Court of Justice of the EU approves CETA investment court system →

In the first week of April, the UNCITRAL Working Group III (Investor-State Dispute Settlement Reform) will continue its work replacing the currently existing investor-state dispute settlement (ISDS) with a multilateral investment court (MIC) in New York.

As in most international agreements, the Brexit withdrawal agreement (which has been agreed at negotiators’ level but has yet to receive approval in the UK Parliament) contains a dispute resolution clause to resolve any disputes on its interpretation or application.

Recently, an UNCITRAL Working Group has concluded its work by proposing a “Convention on international settlement agreements resulting from mediation” (A/CN.9/942) with the aim of enabling the enforcement of such settlements via domestic courts.

Recently, the Dutch Ministry of Foreign Affairs published a new draft model bilateral investment treaty (BIT) text for public consultation. The aim of this draft text is to replace the 2004 model BIT text and align it with the EU’s model treaty text, as exemplified by the Canada-EU FTA (CETA). The draft text is also … Continue reading The CETArisation of future Dutch BITs →

In his Opinion, Advocate General Wathelet in Achmea v Slovak Republic some six months ago argued that intra-EU bilateral investment treaties (BITs) and investment treaty arbitration based on those BITs are compatible with EU law. More specifically, he opined that arbitral tribunals established on the basis of intra-EU BITs should be considered similar to the domestic courts of EU … Continue reading Black Tuesday: the end of intra-EU BITs →

On 5 February 2018, about 100 participants attended the 3rd EFILA Annual Conference, entitled Parallel States’ Obligations in Investor-State Arbitration, which took place at Senate House in London.

In November 2017, the European Commission (EC) issued its decision on the Spanish support measures for renewable energy sources.

The recent events regarding the annexation of Crimea by Russia has given rise to the issue of a breach of territorial integrity and thus the sovereignty of states, and how such a breach affects the application of investment treaties and dispute settlement options.

The long-awaited Opinion of Advocate General (AG) Wathelet in the Achmea case has resulted in an unexpected and rather surprising Opinion. Many observers (including the present writer) had expected that the AG would hammer the final nail on the coffin of intra-EU BITs and arbitral tribunals based on these treaties. After all, the pressure by … Continue reading The poison pill for maintaining intra-EU BITs arbitration →

The long-awaited opinion of the Court of Justice of the EU (ECJ) on the question of whether or not the EU has exclusive competence over all aspects of the EU-Singapore Free Trade Agreement (FTA) left the most disputed issue unanswered, namely, whether or not investor-state dispute settlement (ISDS) is compatible with EU law.

UK Prime Minister May was the first foreign leader to visit US President Trump, thereby underlining the “special relationship” between the UK and the USA. One of the aims of the visit was to kick-start negotiations for a trade deal between the UK and the USA.

Trade and investment agreements featured extensively during the US presidential election campaign.

In September 2015, it was reported that the Romanian President submitted draft legislation to the Parliament approving the termination of Romania’s 22 intra-EU bilateral investment treaties (BITs). The main reason given for this move is the pressure the European Commission (Commission) has imposed on EU member states for several years now.

The two Philip Morris cases, involving restrictions on the presentation and sale of cigarettes through plain packaging measures, have been used by anti-investor-state dispute settlement (ISDS) groups as the prime examples for creating the myth that treaty arbitration causes states not to adopt certain measures for the protection of public goods. They argue that it has resulted in … Continue reading After Philip Morris II: states maintain their regulatory powers to control the plain packaging of cigarettes →

After the initial shock of the outcome of the referendum in the UK, in which a slight majority voted for leaving the EU, the UK government has started considering the options of shaping the UK’s trade relationships post-Brexit.

One of the main catalysts for firing up the campaign against investor-state dispute settlement (ISDS) as contained in investment treaties has been the effective use of social media tools by non-governmental organisations (NGOs), local communities and other civil society stakeholders.

On 2 May 2016, it was reported that Denmark has proposed to the other EU member states to mutually terminate the existing bilateral investment treaties (intra-EU BITs) between them.

When Argentina defaulted for more than $80 billion in debt in 2001, it became embroiled in numerous court proceedings and investment arbitration disputes involving all types of investors from around the world. For more than a decade Argentina managed to avoid paying its debts or at least offer some level of compensation. This in turn resulted … Continue reading Argentina: back to business? →

Ever since the European Commission and the European Parliament started to get involved with investment protection and investor-state dispute settlement (ISDS), investment treaty arbitration has increasingly come under pressure.

At the 2nd Annual Conference of the European Federation for Investment Law and Arbitration (EFILA) which was held in Paris on 5 February 2016, investment arbitration experts discussed current issues of investment arbitration and the way forward. More than 100 investment arbitration experts, ranging from policy makers and academics, to counsel and arbitrators, discussed a … Continue reading Key points from EFILA’s 2nd Annual Conference →