Investment Arbitration and EU Law

2016 ◽  
Vol 18 ◽  
pp. 3-19 ◽  
Author(s):  
Juliane KOKOTT ◽  
Christoph SOBOTTA
Keyword(s):  
International Agreements ◽  
Judicial System ◽  
Eu Law ◽  
Member States ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Substantial Investment ◽  
Investment Agreement ◽  
Judicial Protection ◽  
The Eu

AbstractInvestment arbitration is based on international agreements and operates in parallel to the EU legal and judicial system. Therefore conflicts between EU law and investment protection are possible. These may result from the substantial investment protection standards, but also from the operation of a parallel system of judicial protection. The EU law position on such conflicts will depend on whether the investment agreement was concluded between Member States, between Member States and other countries, or between the EU and other countries.

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

scholarly journals Joined Cases A. K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy (C.J.E.U.)

2020 ◽  
Vol 59 (3) ◽  
pp. 459-486
Author(s):  
Joelle Grogan
Keyword(s):  
Judicial Independence ◽  
Eu Law ◽  
European Standard ◽  
Current Case ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
Judicial Protection ◽  
National Measure ◽  
The Eu

Joined Cases C-585/18, C-624/18, and C-625/18 concerning the independence of the Disciplinary Chamber of the Sąd Najwyższy (Polish Supreme Court) is the latest in a series of European Union (EU) Member States requesting the Court of Justice of the EU (CJEU) to rule on the independence of their judicial systems. While the organization of justice systems within Member States is a competence of Member States (and thus not for the EU to determine or decide), the CJEU has held that Member States are nevertheless required to comply with obligations under EU law to ensure effective judicial protection and, as a necessary corollary, judicial independence. The significance of the current case lies in the formulation by the CJEU of a “European” standard of judicial independence, and its finding that national judges may set aside the jurisdiction of courts found not to be independent against that standard and to disapply any national measure (in accordance with the principle of the primacy of EU law over national law) that gives jurisdiction to a non-independent court.

INTRA-EU INVESTMENT AGREEMENTS AND ARBITRATION: IS EUROPEAN COMMUNITY LAW AN OBSTACLE?

2009 ◽  
Vol 58 (2) ◽  
pp. 297-320 ◽  
Author(s):  
Hanno Wehland
Keyword(s):  
Eu Enlargement ◽  
Member States ◽  
Unequal Treatment ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Lack Of Control ◽  
Ec Law ◽  
Investment Agreements ◽  
The Eu ◽  
European Community Law

AbstractBilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.

scholarly journals CJEU Achmea Judgment and What Comes Next. Some Reflections on the Potential Implications of the CJEU Judgment (C-284/16)

2020 ◽  
Vol 8 (1) ◽  
pp. 123-138
Author(s):  
Przemysław Domagała
Keyword(s):  
Member State ◽  
International Law ◽  
Judicial System ◽  
Eu Law ◽  
Member States ◽  
Customary International Law ◽  
Practical Solution ◽  
Investment Agreements ◽  
The Eu

In the judgment of 6.03.2018 (Achmea case, C-284/16), CJEU ruled that treaty clauses that allow investor from one of the Member States to bring proceedings against another Member State before an arbitraltribunal outside the EU judicial system are irreconcilable with Articles 267 and 344 TFEU when such tribunal may be called on to interpret or apply EU law. This principle is applicable to EU trade or investment agreements (FTAs and IIAs), since they are part of EU law, and to BITs, FTAs and IIAs, since they contain explicit or implicit referrals to municipal (EU) law. In intra-EU relations, such a conflict of norms must be solved according to customary international law codified in the VCLT. According to this law, TFEU would prevail as lex superior and, in the case of Poland and many other Member States, as lex posterior. In intra-EU relations, TFEU prevails ex proprio vigore, i.e. without the need to terminate intra-EU BITs. However, such termination is highly desirable, not only for reasons of clarity, but also because arbitral tribunals and extra-EU courts are not bounded by the ECJ’s ruling. In the case of agreements with non-Member States, the incompatibilities referred to in the Achmea judgment must be eliminated by renegotiation or formal termination (Article 307 (2) TFEU). In the case of the BITs, the latter seems to be the only practical solution.

23. EU external action

2020 ◽  
pp. 731-791
Author(s):  
Geert De Baere
Keyword(s):  
Decision Making ◽  
Composite System ◽  
External Action ◽  
International Agreements ◽  
External Representation ◽  
Eu Law ◽  
Member States ◽  
External Relations ◽  
Policy Fields ◽  
The Eu

This chapter examines the EU law on external relations. It explores the complex division of competences between the Member States and the Union, and between the different institutions of the Union in the field of external action; the applicable decision-making procedures, including the procedure for concluding international agreements; the Union’s composite system of external representation; and how the Union manages the vertical (between the Union and the Member States) and horizontal (between the different Institutions and policy fields of the EU) division of its external competences.

Making Treaties and Other International Agreements

2019 ◽  
pp. 238-256
Author(s):  
Marise Cremona
Keyword(s):  
European Union ◽  
Foreign Relations ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Executive Discretion ◽  
External Powers ◽  
Mixed Agreements ◽  
The Eu

This chapter examines the foreign relations law of the European Union concerning the making of treaties and other international agreements. It first outlines the sources of EU law on treaty-making and the legal and constitutional context in which EU treaty-making takes place. It then turns to the law relating to the process of treaty negotiation and to the signature, provisional application, and conclusion of treaties, identifying the ways in which the specific legal characteristics of the European Union as a treaty maker are reflected in its foreign relations law. These include the principle of conferred powers, whereby all treaty-making power must be conferred expressly or impliedly by the EU Treaties, and the institutional balance of powers. For the European Union, treaty-making is not a manifestation of sovereignty and cannot be regarded as simply a matter of executive discretion; the policy balance of a projected treaty and its relation to the European Union’s general objectives may be subject to judicial assessment. The member states remain sovereign subjects of international law and, as a matter of EU law, the European Union’s external powers do not necessarily displace those of the member states. As a result, the European Union and member states will often enter into treaties together, although there are no formal rules in the EU system, apart from the general mutual duties of cooperation, governing the negotiation and conclusion of such “mixed agreements.”

24. EU external action

2017 ◽  
Author(s):  
Geert De Baere
Keyword(s):  
Decision Making ◽  
Composite System ◽  
External Action ◽  
International Agreements ◽  
External Representation ◽  
Eu Law ◽  
Member States ◽  
External Relations ◽  
Policy Fields ◽  
The Eu

This chapter examines the EU law on external relations. It explores the complex division of competences between the Member States and the Union, and between the different institutions of the Union in the field of external action; the applicable decision-making procedures, including the procedure for concluding international agreements; the Union’s composite system of external representation; and how the Union manages the vertical (between the Union and the Member States) and horizontal (between the different Institutions and policy fields of the EU) division of its external competences.

scholarly journals Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature

2019 ◽  
Vol 12 (2) ◽  
pp. 35-62
Author(s):  
Matteo Bonelli
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Lisbon Treaty ◽  
Recent Case ◽  
Eu Law ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Protection ◽  
The Eu

Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.

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