Never Get High on Your Own Supply – ‘Autonomy of the EU Legal Order’ and Effective Treaty-Based Dispute Settlement Mechanisms

2020 ◽  
pp. 128-160
Keyword(s):  
Dispute Settlement ◽  
Legal Order ◽  
The Eu ◽  
Dispute Settlement Mechanisms

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.

Dispute Settlement Mechanisms Provided by the Association Agreements Concluded By the European Union with Third Countries

2020 ◽  
Vol 27 (3) ◽  
pp. 63-79
Author(s):  
Kseniia Smyrnova
Keyword(s):  
Dispute Settlement ◽  
Main Task ◽  
The European Union ◽  
Association Agreement ◽  
Trade Dispute ◽  
First Case ◽  
Arbitration Procedure ◽  
Rules Of Procedure ◽  
The Eu ◽  
Dispute Settlement Mechanisms

International dispute settlement and international relations both have a long history. All EU association agreements have appropriate dispute settlement mechanisms, which differ to some extent. The main task of this study is to determine the international legal mechanisms for resolving disputes included in the Association Agreement between the EU and Ukraine. Furthermore, the purpose of the study becomes especially relevant in the context of the process of resolving the Ukraine-EU trade dispute on national restrictions on timber exports, which is the first dispute in Ukrainian practice. A comparison of the various treaty principles of EU cooperation with third countries suggests that the highest level of protection of individuals through the functioning of the dispute settlement mechanism is described by association agreements, and some of them even resemble an "arbitration clause". It was found that the criteria of comparative analysis were the types of dispute resolution mechanisms, consultation procedures and arbitration procedure, mediation procedure and rules of procedure. According to these criteria, it was found that the association agreements contain almost identical provisions on consultation procedures and arbitration, with the exception of some agreements where arbitration is presented on a narrower scale. The provisions on mediation procedures in the submitted agreements are almost identical to the Code of Conduct for Arbitrators and the Rules of Procedure, which serve as template documents duplicated in the various agreements. The association agreements between the EU and Ukraine, Georgia, and Moldova are analysed in detail, and common and distinctive features are described. Differences in the details of dispute settlement mechanisms may indicate that the parties have concerns about the likelihood and intensity of disputes. The Association Agreement between Ukraine and the EU for the settlement of disputes makes provision for the use of various methods: consultations, arbitration, the establishment of an arbitration panel. Particular attention is paid to the analysis of the first case of a trade dispute, which is resolved with the use of the arbitration procedure under the Association Agreement with Ukraine on the export of raw wood

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.

scholarly journals The CETA ICS and the Autonomy of the EU Legal Order in Opinion 1/17 – A Compass for the Future

2020 ◽  
pp. 1-27
Author(s):  
Maria FANOU
Keyword(s):  
International Relations ◽  
Dispute Settlement ◽  
Green Light ◽  
Trade Agreement ◽  
Legal Order ◽  
Court System ◽  
Eu Law ◽  
Court Of Justice ◽  
Legal Context ◽  
The Eu

Abstract In April 2019, the Court of Justice of the EU (‘CJEU’) handed down its Opinion (C-1/17) on the compatibility of the Investment Court System (‘ICS’), that is the Investor-State Dispute Settlement (‘ISDS’) mechanism under the EU-Canada Comprehensive and Economic Trade Agreement (‘CETA’), with EU law. This article puts Opinion 1/17 in its broader (policy and legal) context, focusing on the salient issue of compatibility with the principle of autonomy of the EU legal order. It argues that the Court's openness to this judicial competitor was an acknowledgment of the need to maintain the powers of the Union in international relations. However, Opinion 1/17 should not be perceived as an automatic green light for any future investment court (such as the Multilateral Investment Court) as the autonomy test it introduces is a rather difficult one to pass.

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 The EU and international dispute settlement *

2017 ◽  
Author(s):  
Allan Rosas
Keyword(s):  
Dispute Settlement ◽  
Bilateral Trade ◽  
Bilateral Agreements ◽  
Eu Member States ◽  
European Court ◽  
International Dispute ◽  
Recent Developments ◽  
Investment Agreements ◽  
The Eu ◽  
Dispute Settlement Mechanisms

This article focuses on recent developments with regard to the mechanisms for international dispute settlement which the EU has accepted or in some instances promoted, or which in any case are of direct relevance for the EU. As a preliminary question, the case law of the European Court of Justice concerning the compatibility of international dispute settlement mechanisms will be analysed. The article then provides an overview of such mechanisms included in multilateral and bilateral agreements concluded by the EU, with a particular emphasis on recent bilateral trade and cooperation agreements. The last parts of the article look at specific institutional problems such as the question of the representation of the EU before international dispute settlement mechanisms, and the special challenges posed by investment disputes and, in this context, investor-to-state dispute settlement (ISDS), including ISDS mechanisms in bilateral investment agreements concluded between the EU Member States.

The Compatibility of Investment Arbitration in eu Trade Agreements with the eu Judicial System

2016 ◽  
Vol 13 (1) ◽  
pp. 46-63 ◽  
Author(s):  
Dr. Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreements ◽  
Legal Order ◽  
European Court Of Justice ◽  
Court System ◽  
Foreign Investors ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

This article explores the legality of investment arbitration in eu trade agreements under eu law. Investor-state dispute settlement (isds), including the Investment Court System, allows foreign investors to challenge eu acts and decisions before investment tribunals and these tribunals may be faced with questions of eu law. Since this system of dispute resolution operates entirely outside the eu judicial framework and rivals with it, the powers of the courts of the Member States and that of the European Court of Justice may be adversely affected. This in turn could affect the uniform interpretation and effectiveness of eu law and the autonomy of the eu legal order.

International Courts or Tribunals and the Autonomy of the EU Legal Order

2019 ◽  
pp. 185-222
Author(s):  
Christina Eckes
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
External Pressure ◽  
Legal Order ◽  
European Convention ◽  
Court System ◽  
International Courts ◽  
European Court ◽  
External Relations ◽  
The Eu

Chapter 6 examines the consequences of the Union’s submission to the jurisdiction of international courts and tribunals (ICTs) for the autonomy of the EU legal order. In fact, no discussion of the effects of external relations on the internal constitutional structures would be complete without considering the specific and ever-increasing external pressure from ICTs that led the Court of Justice (CJEU) to take a rather protective and controversial position, for example, in Opinion 2/13 (EU accession to the European Convention on Human Rights). Chapter 6 concentrates on three ICTs that have, in the eyes of the Court or the Commission, raised particular issues for the autonomy of the EU legal order: investor-state dispute settlement mechanisms/the Investment Court System (ISDS/ICS), the Aarhus Convention Compliance Committee (ACCC) and the European Court of Human Rights (ECtHR) after the EU’s accession to the ECHR. The chapter draws the conclusion that, under certain circumstances, the CJEU’s concern that ICTs may threaten the autonomy of the EU legal order is plausible and links this conclusion to the potential of emerging structures of bonding within the EU legal order, as well as the effectiveness and legitimacy of the Union and its actions. Simply put, conceptual legal autonomy is needed for all three. Indeed, the very potential of structures of bonding depends on autonomy. One can only bond with an autonomous entity.

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