Posts from NL Investmentconsulting

Have member state BITs changed since 2013?

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?

Using the Paris Agreement in arbitrations

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

Game over for intra-EU BITs

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

The need for a Data Protection Protocol for arbitration proceedings

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

Court of Justice of the EU approves CETA investment court system

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

A preview on the upcoming UNCITRAL negotiations for a multilateral investment court

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.

The potential incompatibility of the arbitration clause in the Brexit withdrawal agreement

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.