Dutch Bilateral Investment Treaties and Investment Protection in the European Union: Some Observations on Non-Discrimination and Investment Restructuring

2011 ◽  
pp. 199-219
Keyword(s):  
European Union ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
Investment Protection ◽  
Investment Treaties

scholarly journals Federico Ortino

2018 ◽  
Vol 112 ◽  
pp. 67-68
Author(s):  
Federico Ortino
Keyword(s):  
European Union ◽  
Market Access ◽  
Trade Agreement ◽  
The United States ◽  
Third Party ◽  
The European Union ◽  
National Treatment ◽  
Investment Protection ◽  
Investment Treaties ◽  
The Eu

Even when it comes to investment, despite appearances to the contrary, it does not seem to me that there is a shift to the non-discrimination principle. First, there is no doubt that absolute standards such as fair and equitable treatment or the provision on expropriation have by far overshadowed the relative standards, in particular national treatment. Second, while the MFN standard has, on the other hand, been a key provision in investment treaty arbitration, particularly as an instrument to expand the scope of the ISDS system (based on more favorable provisions found in third-party treaties), there are clear signs in recent investment treaties of the willingness to curtail the use of the MFN provision as a way to extend the procedural and substantive protections of investors. This seems to be the current position, for example, of both the United States and the European Union (EU). Third, when it comes to the apparent disappearance of the absolute standards of treatment in some of the treaties being negotiated by the European Union (such as with Japan), this is more simply due to a question of the nature of the EU external competence in commercial matters. In its recent opinion on the EU-Singapore FTA, the Court of Justice of the EU has determined that the EU does not have exclusive competence to conclude agreements covering non-FDI and ISDS. The EU has thus responded to such opinion by splitting investment protection (with ISDS) from the rest of the trade agreement, thus keeping investment liberalization (including market access and national treatment) in the latter. In this way, while the trade agreement will fall under the exclusive competence of the EU, the former will still require ratification by each member state. While it is not clear whether the backlash vis-à-vis investment protection and ISDS in some quarters within some of the member states will eventually lead to the end of EU investment treaties, a decision in this sense has not yet been taken by EU institutions.

The agreement terminating intra-EU BITs: are its provisions on ‘New’ and ‘Pending’ Arbitration Proceedings compatible with investors’ fundamental rights?

2020 ◽  
Author(s):  
Gordon Nardell QC ◽  
Laura Rees-Evans
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Access To Justice ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
Member States ◽  
Legal Questions ◽  
The Status ◽  
Investment Treaties

Abstract On 5 May 2020, 23 Member States of the EU signed a plurilateral treaty with the purpose of terminating the nearly 130 Bilateral Investment Treaties (BITs) between them (the so-called ‘intra-EU BITs’) and the 11 sunset clauses that continue in effect in intra-EU BITs that have already been terminated. The treaty, entitled the ‘Agreement for the Termination of Bilateral Investment Treaties Between the Member States of the European Union’, marks the beginning of the next—but by no means the final—chapter in the controversy over the status of intra-EU BITs. In this article, we examine one of the many important legal questions raised by the Agreement; namely, whether its attempt to undercut arbitrations commenced well before the Agreement came into force, including those resulting in awards rendered before the Achmea judgment, is compatible with investors’ rights under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. We argue that by purporting to deprive investors of the fruits of valid claims in this way, the Agreement infringes Article 1 of the First Protocol to the ECHR (‘A1P1’) and may also breach the rights of access to justice and a fair hearing under Article 6(1) (and their equivalents in the Charter).

scholarly journals Services and Investment in the EU - South Korea Free-Trade Area: Implications of a New Approach for GATS V Agreements and for Bilateral Investment Treaties

2012 ◽  
pp. 157-185 ◽  
Author(s):  
James Mathis ◽  
Eugenia Laurenza
Keyword(s):  
European Union ◽  
Free Trade ◽  
Free Trade Area ◽  
Trade Agreement ◽  
Integrated Approach ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
Investment Treaties ◽  
The Republic ◽  
Economic Integration Agreements

This paper focuses on the services and investment features of the recently concluded free trade agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part. This agreement is an early example of a new scheduling approach adopted by the European Union in its regional trade agreements. Rather than isolating services and investment into different sections for attention, the provisions for these factors are merged into a single and integrated approach for establishment and national treatment. After outlining the primary features of the agreement, we analyze the approach taken by the parties to services and investment liberalization. Finally, the implications of this approach are considered in light of the WTO General Agreement on Trade in Services rules for economic integration agreements, and existing bilateral investment treaties operating between the parties.

scholarly journals The Relevance of EU Law for Arbitral Tribunals: (Not) Managing the Lingering Tension

2016 ◽  
Vol 17 (6) ◽  
pp. 873-894 ◽  
Author(s):  
Panos Koutrakos
Keyword(s):  
European Union ◽  
Bilateral Investment Treaties ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
Investment Treaties

The tensions between European Union (EU) law and intra-EU bilateral investment treaties (BITs) have become increasingly visible: they involve national and transnational courts, arbitral tribunals and courts in third states, and arise in a variety of procedural settings and with increasing intensity. Written at a time when questions about the very foundations of the interactions between EU and intra-EU BITs have been raised before the Court of Justice of the European Union, this article highlights the legal and policy factors that may explain the intensity of the current dilemmas. It reflects on the maximalist and polemical approach that a number of actors have adopted over the years, and points out the pitfalls of ignoring the usefulness of pragmatism and comity.

Singapore and Its Free Trade Agreement with the European Union: Rationality ‘Unbound’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 858-889
Author(s):  
Mahdev Mohan
Keyword(s):  
European Union ◽  
Free Trade ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
The European Union ◽  
Next Generation ◽  
National Courts ◽  
Investment Treaties

Abstract Querying Poulsen’s view that some States negotiate investment treaties in ‘bounded’ rational ways, this article focuses on how the recently concluded European Union-Singapore Free Trade Agreement (EUSFTA) illustrates the evolution of Singapore’s treaty practice. Singapore has abandoned the ‘old’, and has joined the bandwagon of next-generation FTAs; yet, shrewdly, it is not fully convinced about the ‘new’ either. For example, the EUSFTA does not include a most-favoured nation clause, and does not commit to an appeals mechanism, unlike its Canadian and Vietnamese counterparts. Singapore’s caution appears to be motivated by a pragmatic desire to avoid the pitfalls that these provisions could bring with them, as Investor-State arbitration (ISA) jurisprudence demonstrates, and to study the implications of a recent decision by the EU’s highest court regarding the FTA. Indeed, that shows that the EU itself is now equally wary of the ISA regime removing disputes from the jurisdiction of national courts.

Slowakische Republik (Slovak Republic) v. Achmea BV (C.J.E.U.)

2019 ◽  
Vol 58 (5) ◽  
pp. 1101-1113
Author(s):  
Jawad Ahmad
Keyword(s):  
Adverse Effect ◽  
European Union ◽  
The Netherlands ◽  
Slovak Republic ◽  
Bilateral Investment Treaties ◽  
Eu Law ◽  
The European Union ◽  
Important Decision ◽  
Court Of Justice ◽  
Energy Charter Treaty

On March 6, 2018, the Court of Justice of the European Union (CJEU) found in Slowakische Republik (Slovak Republic) v. Achmea B.V. that the arbitration agreement contained in the 1991 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (BIT) had an adverse effect on the autonomy of EU law and, thus, was incompatible with EU law. This important decision has ignited a debate on the compatibility of other arbitration agreements in both intra-EU bilateral investment treaties (intra-EU BITs) and in the Energy Charter Treaty (ECT) with EU law.

scholarly journals Legal analysis of systemic investment protection regulation in the European Union’s financial sector

2018 ◽  
Vol 40 ◽  
pp. 01007
Author(s):  
L. Bocs
Keyword(s):  
European Union ◽  
Regional Differences ◽  
Code Of Conduct ◽  
The United States ◽  
Legal Framework ◽  
Legal Analysis ◽  
The European Union ◽  
Investment Policies ◽  
Investment Protection ◽  
Trade And Investment

After the Treaty of Lisbon the European Union has an exclusive and uniform competence regarding investment agreements within its common commercial policy. Yet the political events in 2016 showed that there are still many regional differences politically and economically, especially after the so-called Brexit and negotiations with the United States of America in relation to transatlantic trade and investment. Therefore, the aim of the research is to determine the legal framework and related problems for unified investment protection within the European Union. Using descriptive, logical and deductive methodology the paper establishes a juristic base consensus for trade and investment policies, concludes that so far those policies have been systemically neglected due to regional differences in economic development and accordingly suggests to unify and protect the common investment policies by using already existing regional judicial mechanisms of member states within a unified code of conduct.

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