The decentralised implementation of the ISDS ban by EU domestic courts
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
Lex superior: How EU law trumps investment law
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.
The new Micula judgment and the overreach of the ECJ
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.
Is there still a reason d’etre for the ECT after the CJEU’s ban on intra-EU ECT arbitration?
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?
Finishing the Achmea-job: how the European court gradually suffocates the ECT
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
Vodafone v India award: risky business of retroactive taxation
In a recent, still unpublished award, India lost an arbitration dispute initiated by Vodafone because India had imposed a hefty tax bill of several billion dollars retroactively.
Quo vadis investment protection within the EU?
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 investment treaty implications of COVID-19 responses by states
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.
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.