Dispute Settlement Mechanisms: Gulf Cooperation Council Practice v. European Union Practice

2021 ◽  
pp. 1-26
Author(s):  
Fathi Hussain ◽  
Mahdi Zahraa
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Gulf Cooperation Council ◽  
The European Union ◽  
International Organisations ◽  
Political Will ◽  
Court Of Justice ◽  
The Individual ◽  
The Eu ◽  
Dispute Settlement Mechanisms

Abstract Dispute settlement mechanisms (DSM) are the heart of international organisations without which organisations would be ineffective. The European Union (EU) is probably the most effective regional body whose efficacy is largely due to its powerful judicial organ, the Court of Justice (CJEU). This article also examines the DSM available in the Gulf Cooperation Council (GCC), in order to assess its effectiveness. It briefly discusses aspects of the EU and CJEU to help provide suggestions to improve the GCC DSM. This article concludes that the GCC DSM lacks effectiveness due to an inherent defect in its DMS organs. This defect is twofold: first, the GCC has yet to establish an effective judicial organ to deal with its disputes; and, second, there is a lack of political will to establish an organ that is vested with a supranational power that can override the individual will of the Member States.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

AbstractWhile investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union

2010 ◽  
Vol 12 ◽  
pp. 425-453
Author(s):  
Philip Strik
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Case Law ◽  
Legal Order ◽  
Forum Shopping ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
International Dispute ◽  
The Eu

Abstract While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

scholarly journals What are the Ultimate Sources for Privileges and Immunities of the European Union? Comment on the Judgement of the Court of Justice, Case C-502/19 Junqueras Vies

2021 ◽  
Vol 10 (1) ◽  
pp. 139-153
Author(s):  
Marek Zieliński
Keyword(s):  
European Union ◽  
European Parliament ◽  
Representative Democracy ◽  
The European Union ◽  
International Organisations ◽  
Simultaneous Operation ◽  
Extensive Reading ◽  
Court Of Justice ◽  
The Eu

The judgment of the Court of Justice of the EU in the case of Mr Junqueras Vies has been significant in many respects. It has split the mandate of Members of the European Parliament from the parliamentary functions fulfilled by them. It has also extended the scope of parliamentary privileges and immunities of MEPs as a result of extensive reading of the provisions of the Protocol on Privileges and Immunities of the EU. The present comment argues that such an extensive interpretation had only been possible because the CJEU found in its judgment that the principle of representative democracy created a ‘context’ in which the Court reread the respective provisions on the immunities of MEPs. As a result of the above, it seems the CJEU has found yet another basis for the EU’simmunities, functioning independently of Article 343 TFEU. Contrary to the EU’s immunities which are based on Article 343 TFEU and operate according to the principle of functional necessity, which is characteristic for traditional international organisations, immunities based on the principle of representative democracy operate according to ‘constitutional’ logic, which is characteristic for states. As the EU is evidently neither a traditional international organisation nor a state, simultaneous operation of these two sources for its privileges and immunities may prove to be difficult. In particular, EU citizens may start to wonder why the EU, the functioning of which is based on the principle of representative democracy, enjoys privileges and immunities characteristic for traditional intergovernmentalorganisations.

Institutional organisation of the European Union in the time of crisis – horizontal division of power and functions

2016 ◽  
pp. 54-66
Author(s):  
Monika Poboży
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
European Council ◽  
Executive Power ◽  
The European Union ◽  
Checks And Balances ◽  
Court Of Justice ◽  
Strong Position ◽  
Institutional System ◽  
The Eu

The article poses a question about the existence of the rule of separation of powers in the EU institutional system, as it is suggested by the wording of the treaties. The analysis led to the conclusion, that in the EU institutional system there are three separated functions (powers) assigned to different institutions. The Council and the European Parliament are legislative powers, the Commission and the European Council create a “divided executive”. The Court of Justice is a judicial power. The above mentioned institutions gained strong position within their main functions (legislative, executive, judicial), but the proper mechanisms of checks and balances have not been developed, especially in the relations between legislative and executive power. These powers do not limit one another in the EU system. In the EU there are therefore three separated but arbitrary powers – because they do not limit and balance one another, and are not fully controlled by the member states.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

scholarly journals Has the Action for Failure to Act in the European Union Lost its Purpose?

2014 ◽  
Vol 7 (2) ◽  
pp. 209-226 ◽  
Author(s):  
Inga Daukšienė ◽  
Arvydas Budnikas
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Scientific Literature ◽  
Case Law ◽  
The European Union ◽  
Eu Legislation ◽  
Court Of Justice ◽  
Legal Remedy ◽  
The Eu

ABSTRACT This article analyzes the purpose of the action for failure to act under article 265 of the Treaty on the Functioning of the European Union (TFEU). The statements are derived from the analysis of scientific literature, relevant legislation, practice of the European Union Court of Justice (CJEU) and the European Union General Court (EUGC). Useful information has also been obtained from the opinions of general advocates of the CJEU. The article of TFEU 265, which governs the action for failure to act, is very abstract. For this reason, a whole procedure under the article 265 TFEU was developed by the EU courts. The original purpose of the action for failure to act was to constitute whether European Union (EU) institution properly fulfilled its obligations under the EU legislation. However, in the course of case-law, a mere EU institution’s express refusal to fulfill its duties became sufficient to constitute that the EU institution acted and therefore action for failure to act became devoid of purpose. This article analyzes whether the action for failure to act has lost its purpose and become an ineffective legal remedy in the system of judicial review in the EU. Additionally, the action for failure to act is compared to similar national actions.

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.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

The Oxford Encyclopedia of European Union Politics

2021 ◽  
Keyword(s):  
European Union ◽  
The European Union ◽  
Integration Process ◽  
Court Of Justice ◽  
External Relations ◽  
Foreign Policies ◽  
Decision Making Processes ◽  
Energy Community ◽  
Vital Resource ◽  
The Eu

This encyclopedia offers the most comprehensive and up-to-date resource on the European integration process. Under the editorial directorship of Finn Laursen and associate editors Derek Beach, Roberto Domínguez, Sung-Hoon Park, Sophie Vanhoonacker, and Amy Verdun, the publication brings together peer-reviewed contributions by leading researchers on the European Union as a global actor. Topics include the basic treaties, institutions and policies of the European Union and the previous European Communities, the European Coal and Steel Community, the European Economic Community, and the European Atomic Energy Community. It also includes articles on the various conceptual frameworks and theories that have been developed by political scientists to guide research into the integration process and the policy- and decision-making processes with a focus on the roles of the different institutions, the European Council, the European Commission, the European Parliament, and the Court of Justice of the EU. Additionally, the publication includes articles on the member states as well as external relations and foreign policies of the EU. As a result, the Oxford Encyclopedia of European Union Politics is a vital resource for students, scholars, and policymakers.

OPINION 2/15 OF THE CJEU: DELINEATING THE SCOPE OF THE NEW EU COMPETENCE IN FOREIGN DIRECT INVESTMENT

2018 ◽  
Vol 77 (1) ◽  
pp. 29-32
Author(s):  
Rumiana Yotova
Keyword(s):  
European Union ◽  
Foreign Direct Investment ◽  
Free Trade ◽  
Direct Investment ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
The Eu

ON 16 May 2017, the Court of Justice of the European Union (CJEU) delivered its Opinion 2/15 concerning the competence of the EU to conclude the Free Trade Agreement with Singapore (EUSFTA) (ECLI:EU:C:2017:376). The Opinion was requested by the Commission which argued, with the support of the European Parliament (EP), that the EU had exclusive competence to conclude the EUSFTA. The Council and 25 of the Member States countered that the EUSFTA should be concluded as a mixed agreement – that is, by the EU and each of its members – because some of its provisions fell under the shared competence of the organisation or the competence of the Member States alone.

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