The setting aside and enforcement of intra-EU investment arbitration awards after Achmea

2020 ◽  
Vol 36 (2) ◽  
pp. 253-274
Author(s):  
Julian Scheu ◽  
Petyo Nikolov
Keyword(s):  
Analytical Framework ◽  
Legal Order ◽  
The European Union ◽  
Present Contribution ◽  
Investment Treaty ◽  
European Court ◽  
Starting Point ◽  
Energy Charter Treaty ◽  
The Eu ◽  
Investment Treaty Arbitration

Abstract By rendering its preliminary ruling in Achmea v Slovakia, the European Court of Justice (ECJ) declared intra-EU investment treaty arbitration to be incompatible with fundamental principles of the European legal order. This decision does not only illustrate the challenge of regime interaction in international economic law but is also of highest practical relevance. Diverse and critical reactions from arbitral practice and legal scholarship suggest that it will ultimately be up to the courts within and outside of the EU to clarify how the ECJ’s findings in Achmea relate to the legal fate of arbitral awards. Against this background, the aim of the present contribution is to shed light on the judgment’s legal consequences on the post-award phase. As a starting point, an analysis of the judgment finds that the ECJ’s reasoning in Achmea is applicable to investor–State dispute resolution (ISDS) clauses contained in all intra-EU investment treaties, including the Energy Charter Treaty (ECT) when applied in an intra-EU context (Section 2). Based on these findings, we evaluate how the incompatibility of intra-EU investment treaty arbitration with the law of the European Union (EU law) affects setting aside proceedings (Section 3) and applications for recognition and enforcement of awards (Section 4) within and outside of the EU. We show that possible solutions may range from fully enforcing intra-EU investment awards to completely disregarding any legal effect. Evaluating the complex legal landscape applicable to both types of proceedings clearly illustrates that there is no simple ‘yes-or-no’ rule. Instead, factors such as the applicability of the ICSID Convention, the seat of the arbitral tribunal or the jurisdiction in which enforcement is sought are relevant but should not be considered in isolation. Instead, it is concluded that these factors must be considered as inter-related aspects of an analytical framework which may lead to a coherent understanding of the relationship between the European legal order and the settlement of intra-EU investment disputes (Section 5).

The Incompatibility of Intra-EU Investment Treaty Arbitration With European Union Law – Assessing the Scope of the ECJ's Achmea Judgment

2021 ◽  
Vol 62 (1) ◽  
pp. 475-504
Author(s):  
Julian Scheu ◽  
Petyo Nikolov
Keyword(s):  
Dispute Settlement ◽  
Legal Reasoning ◽  
Eu Law ◽  
European Union Law ◽  
Present Contribution ◽  
Investment Treaty ◽  
European Court ◽  
Energy Charter Treaty ◽  
The One ◽  
Investment Treaty Arbitration

Abstract: In March 2018, the European Court of Justice rendered its Achmea judgment, by which the Court considered the investor-State dispute settlement (ISDS) clause contained in the Dutch-Slovakian investment treaty to be incompatible with EU law. Even though the judgment is considered to be a landmark decision, its potentially far-reaching consequences remain, due to a rather obscure legal reasoning, difficult to assess. The aim of the present contribution is to assess the scope of the Achmea judgment in order to shed light on its relevance for pending and future intra-EU investment arbitrations. In view of the ECJ's Opinion 1/17 rendered in April 2019 and in consideration of recent arbitral practice it is concluded that the scope of the Achmea judgment concerns the incompatibility of intra-EU investment treaty arbitration with EU law. This means on the one hand that the reasoning in Achmea is transferrable not only to ISDS clauses in other intra-EU BITs, but also to Article 26 of the Energy Charter Treaty. On the other hand, the analysis shows that contract-based investment arbitrations are not concerned by the ECJ's findings. Finally, and in view of its clarified scope of application, the relevant factors for analysing the consequences of the Achmea judgement are identified.

The European Legal Order

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal Order ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Domestic Courts ◽  
The Law ◽  
The Eu

Chapter 3 shows that the confluence of the law of the European Union and of the European Convention on Human Rights is a European legal order worthy of the name. It outlines the law of the European Union after the Lisbon Treaty, setting out its principles and the ways in which competences are shared in the EU post Lisbon, between the European Council, the Council, the Commission, the European Parliament, and the Court of Justice of the European Union. The chapter further sets out the outline of the system of rules of the European Union. Then the chapter turns to the characteristics of what has been termed a Europe of human rights, and how the European Court of Human Rights (ECHR), in conjunction with domestic courts, police the law of the European Convention on Human Rights. Finally, the chapter brings together the law of the European Union and the ECHR.

Human Rights: The Best is Yet to Come

2004 ◽  
Vol 1 (1) ◽  
pp. 27-37 ◽  
Author(s):  
Rick Lawson
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
To Come ◽  
The Eu

Now that the EU Constitution has been adopted, one might be inclined to think that the debate on the position of human rights in the legal order of the European Union has come to an end. For more than 25 years academics and politicians have discussed the desirability of EC/EU accession to the European Convention of Human Rights and have argued for or against a separate bill of fundamental rights. That is all over now: Article I-7 of the Constitution provides for Union accession to the European Convention, whereas part II incorporates the Charter of Fundamental Rights.It would seem, therefore, that a solid framework for the protection of human rights in the EU legal order has been put in place. The rest will be a matter of implementation: taking fundamental rights into account when drafting and executing European legislation; invoking these rights before the Court of Justice; lodging complaints with the European Court of Human Rights when the EU institutions, despite everything, failed to secure these rights. All very important, albeit that some may find the daily application of human rights not as sexy as the large constitutional questions of the past.So is this the ‘end of history’ for human rights? Quite the opposite. The best is yet to come!

Foreign Affairs Federalism in the European Union

2019 ◽  
pp. 331-351
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Foreign Affairs ◽  
The European Union ◽  
Member States ◽  
European Court ◽  
Treaty Of Rome ◽  
Formed Part ◽  
Mixed Agreements

The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.

scholarly journals Economic and Environmental Consequences of the ECJ Genome Editing Judgment in Agriculture

Agronomy ◽  
2021 ◽  
Vol 11 (6) ◽  
pp. 1212
Author(s):  
Alexander Gocht ◽  
Nicola Consmüller ◽  
Ferike Thom ◽  
Harald Grethe
Keyword(s):  
Genome Editing ◽  
Agricultural Sector ◽  
Ghg Emissions ◽  
Food Products ◽  
Food Prices ◽  
Farm Income ◽  
The European Union ◽  
Environmental Consequences ◽  
European Court ◽  
The Eu

Genome-edited crops are on the verge of being placed on the market and their agricultural and food products will thus be internationally traded soon. National regulations, however, diverge regarding the classification of genome-edited crops. Major countries such as the US and Brazil do not specifically regulate genome-edited crops, while in the European Union, they fall under GMO legislation, according to the European Court of Justice (ECJ). As it is in some cases impossible to analytically distinguish between products from genome-edited plants and those from non-genome-edited plants, EU importers may fear the risk of violating EU legislation. They may choose not to import any agricultural and food products based on crops for which genome-edited varieties are available. Therefore, crop products of which the EU is currently a net importer would become more expensive in the EU, and production would intensify. Furthermore, an intense substitution of products covered and not covered by genome editing would occur in consumption, production, and trade. We analyzed the effects of such a cease of EU imports for cereals and soy in the EU agricultural sector with the comparative static agricultural sector equilibrium model CAPRI. Our results indicate dramatic effects on agricultural and food prices as well as on farm income. The intensification of EU agriculture may result in negative net environmental effects in the EU as well as in an increase in global greenhouse gas (GHG) emissions. This suggests that trade effects should be considered when developing domestic regulation for genome-edited crops.

Front-of-pack nutrition labelling in the European Union: a behavioural, legal and political analysis

2021 ◽  
pp. 1-24
Author(s):  
Vincent DELHOMME
Keyword(s):  
European Union ◽  
Dietary Habits ◽  
Legal Framework ◽  
The European Union ◽  
Present Contribution ◽  
Eu Member States ◽  
Nutrition Labelling ◽  
Political Analysis ◽  
Legislative Proposal ◽  
The Eu

Amidst a growing interest from European Union (EU) Member States, the European Commission recently announced that it would put forward a legislative proposal for the adoption of a harmonised and mandatory front-of-pack nutrition labelling scheme at the EU level. The present contribution discusses the implications of such an adoption, taking a behavioural, legal and policy angle. It introduces first the concept of front-of-pack nutrition labelling and the existing evidence regarding its effects on consumer behaviour and dietary habits. It then presents the legal framework currently applicable to (front-of-pack) nutrition labelling in the EU and discusses some of the main political and practical aspects involved with the development of a common EU front-of-pack label.

scholarly journals The European Union and WTO law: a nexus of reactive, coactive, and proactive approaches

2007 ◽  
Vol 6 (1) ◽  
pp. 45-87 ◽  
Author(s):  
ANTONIS ANTONIADIS
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Political Institutions ◽  
Legal Order ◽  
The European Union ◽  
Comprehensive View ◽  
Court Of Justice ◽  
Community Legal Order ◽  
The Eu

Ranging from the denial of direct effect to WTO law by the Court of Justice to a WTO-friendly legislative culture currently booming in the EU's political institutions, different approaches towards WTO law have been adopted within the EU. This article classifies the different approaches into reactive, coactive, and proactive by drawing on their common characteristics. The principal aim is to explore the considerations shaping the development of the different approaches and to argue that these stem from the interaction between the judiciary and the legislature. In doing so, this article purports to provide a comprehensive view of the application of WTO law within the Community legal order.

scholarly journals Confronting Energy Poverty in Europe: A Research and Policy Agenda

Energies ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 858
Author(s):  
Stefan Bouzarovski ◽  
Harriet Thomson ◽  
Marine Cornelis
Keyword(s):  
Decision Making ◽  
Clean Energy ◽  
Policy Agenda ◽  
The European Union ◽  
Energy Poverty ◽  
Global Context ◽  
Multiple Strategies ◽  
Starting Point ◽  
Research And Policy ◽  
The Eu

This paper scrutinizes existing policy efforts to address energy poverty at the governance scale of the European Union (EU) and its constituent Member States. Our main starting point is the recent expansion of energy poverty policies at the EU level, fuelled by the regulatory provisions of the Clean Energy for all Europeans Package, as well as the establishment of an EU Energy Poverty Observatory. Aided by a systematic and customized methodology, we survey the extensive scientific body of work that has recently been published on the topic, as well as the multiple strategies and measures to address energy poverty that have been formulated across the EU. This includes the principal mitigation approaches adopted by key European and national institutions. We develop a framework to judge the distributional and procedural justice provisions within the recently adopted National Energy and Climate Plans, as an indicator of the power, ability and resolve of relevant institutions to combat the causes and consequences of energy injustice. We also provide a research and policy agenda for future action, highlighting a series of scientific and decision-making challenges in the European and global context.

scholarly journals La autonomía del ordenamiento de la Unión y las «funciones esenciales» de su sistema jurisdiccional = The autonomy of the european legal order and the «indispensable tasks» of its jurisdictional system

2013 ◽  
pp. 225
Author(s):  
Miguel Azpitarte Sánchez
Keyword(s):  
European Union ◽  
Legal Order ◽  
Judicial Power ◽  
The Political ◽  
The European Union ◽  
Political Reason ◽  
European Court ◽  
Essential Question ◽  
El Sistema ◽  
Title Iii

La renovada defensa que el Tribunal de Justicia hace del concepto de autonomía contrasta con los impulsos políticos que intentan abrir la jurisdicción de la Unión, sea prolongando su intervención hacia fuera, o reconociendo competencia a tribunales ajenos a ella. Dada esta situación paradójica, mi intención es reflexionar sobre el vínculo entre autonomía del ordenamiento y funciones esenciales del sistema jurisdiccional. Para ello, en el epígrafe II, al modo de un intento de arqueología jurídica, me planteo cuáles han sido las razones constitucionales que condujeron a diseñar ese vínculo que el Tribunal de Justicia ha subrayado. En mi opinión, tres divisiones esenciales —la funcional, la institucional y la de parámetros de validez— dan sentido al modelo de cooperación vigilada que sostendría la autonomía del ordenamiento. A continuación, en el epígrafe III, intento mostrar las debilidades actuales del sistema jurisdiccional de la Unión. En primer lugar, pese a que el Tribunal de Justicia hace causa firme de la autonomía, la realidad y las propias exigencias de los Tratados constitutivos llaman a su complemento por otros actores. La pregunta esencial es saber qué función cumplen tales actores en esa labor de adición. En segundo lugar, la tutela que ofrece el sistema jurisdiccional de la Unión es hoy doblemente asimétrica, de un lado porque no extiende la garantía de la tutela judicial mediante recursos; de otro, porque opera de forma distinta si controla actos del Estado o de los particulares. Finalmente, intentaré defender que estos dos flancos abiertos —una autonomía necesitada de complemento y una tutela asimétrica— explican al menos la razón política encaminada a abrir la jurisdicción más allá de la Unión.The European Court’s renew vindication of the autonomy of the European Union Legal order opposes against the political impulses directed to open the judicial power of the Union, taking its jurisdiction beyond the Union or giving jurisdiction to court outside the Unión. Do to this paradox, I try to analyze the link between autonomy of the legal order and indispensable tasks of the judicial power of the Unión. In title II, in an effort of juridical archeology, I wonder which have been the constitutional reasons that moved to the link mentioned. In my opinion three fundamental divisions —functional, institutional and validity divisions— justify the jurisdictional model of vigilant cooperation that build the autonomy of the legal order. In title III, I try to show the weakness of this model. Firstly, although the European Court holds strong on autonomy, reality and the constitutive Treaties call for a complement. The essential question is to know what function develop several actors. Secondly, the protection offered by the judicial power of the Union is asymmetric in a double sense: it does not extend the protection through a system of appeals and it works in a different way attending to state or private origin of the wrong. Finally, I try to defend that those two asymmetries explain the political reason towards the opening of the judicial power of the Union.

scholarly journals From social regulation of competition to competition as social regulation: transformations in the socioeconomic governance of the European Union

2017 ◽  
pp. 53-68 ◽  
Author(s):  
Antonios Roumpakis ◽  
Theo Papadopoulos
Keyword(s):  
Industrial Relations ◽  
Social Regulation ◽  
The European Union ◽  
Wage Setting ◽  
Regulatory Changes ◽  
European Court ◽  
The Right ◽  
New Procedures ◽  
The Eu

This chapter studies the character of contemporary socioeconomic governance in the EU. It draws on empirical evidence capturing the type and extent of regulatory changes in the fields of industrial relations, corporate governance, and the coordination of macro-economic policy in the EU. The effects of these changes are long term, cumulative, and mutually reinforcing and should be seen as integral elements of a relatively coherent project to establish a form of transnational polity in Europe that privileges competition as its regulatory rationale. Indeed, the European Court of Justice (ECJ) has been institutionally prioritising market freedoms and competition over labour rights, and especially the right to collective action in an emerging transnational regulatory field in the EU. Meanwhile, the new procedures of European macro-economic coordination construe national wage setting, collective bargaining institutions, and, more generally, social policy as adjustment variables serving primarily the purpose of promoting or restoring member states' economic competitiveness.

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