scholarly journals THE FATE OF INVESTMENT DISPUTE RESOLUTION AFTER THE ACHMEA DECISION OF THE EUROPEAN COURT OF JUSTICE

2018 ◽  
Vol 19 (3) ◽  
Author(s):  
Burkhard Hess
Keyword(s):  
Dispute Resolution ◽  
Point Of View ◽  
European Court Of Justice ◽  
European Convention ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
European Court ◽  
International Dispute ◽  
The Uk ◽  
The Eu

This article explores the contents and consequences of the Achmea judgment recently given by the European Court of Justice (6 March 2018, case C-284/16). In its first part, the article analyses the judgment from a European point of view. It notes that Achmea is primarily concerned with the autonomy of the EU legal order in international dispute resolution and only secondarily with investment arbitration. The judgment seamlessly ties in with the Court’s Opinion 2/13 on the Accession of the EU to the European Convention of Human Rights. In its second part, the article assesses the consequences of the judgment for current and future investment dispute resolution. It argues that (i) investment arbitration is over for intra-EU Bilateral Investment Treaties and (ii) most likely also for intra-EU disputes under the Energy Charter Treaty; (iii) the European Commission must be careful not to jeopardise the supremacy of the ECJ in interpreting the EU law when concluding future international dispute resolution agreements; (iv) the same holds true regarding dispute resolution under the UK Withdrawal Agreement when negotiating the Brexit.

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.

EU-UK relations enter a decisive period

2021 ◽  
Keyword(s):  
Climate Change ◽  
Northern Ireland ◽  
European Court Of Justice ◽  
Content Type ◽  
The United Kingdom ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
Competitive Regions ◽  
The Eu

Significance The proposals are ambitious and bring both sides closer on some important issues, such as agrifood trade and customs paperwork. However, the proposals ignore UK demands to remove European Court of Justice (ECJ) oversight in Northern Ireland. This issue threatens to thwart a compromise. Impacts UK triggering of Article 16 would put pressure on Dublin to stop Irish businesses from buying goods from Northern Ireland. The UK government will seek to downplay tensions with the EU over the NIP until after the UN climate change conference in Glasgow. UK regulatory divergence will be a source of tension for EU-UK ties, as London will want Northern Ireland to follow the UK direction. If the NIP is fully implemented, Northern Ireland could become one of the most competitive regions in the United Kingdom.

scholarly journals Regulatory Autonomy of Great Britain: Problems and Perspectives

2021 ◽  
Vol 65 (7) ◽  
pp. 71-79
Author(s):  
A. Bolshakov
Keyword(s):  
Great Britain ◽  
Dispute Settlement ◽  
Regulatory Policy ◽  
European Court Of Justice ◽  
Dispute Settlement Mechanism ◽  
Court Of Justice ◽  
European Court ◽  
The Uk ◽  
Settlement Mechanism ◽  
The Eu

Sovereignty does not imply regulatory autonomy. After Brexit, the UK should align its regulatory policy with European norms, if it is interested in close partnership with the EU. Compromises must be made by both sides in order to ensure stability of the partnership. The EU will have to acknowledge the UK’s right to diverge from European rules. Britain will have to partly accept the jurisdiction of the European Court of Justice. The structure of dispute settlement mechanism which will be created under the partnership agreement should be a product of a compromise. The present study shows that optimal structure of dispute settlement mechanism must include two different procedures: one for political issues and the other for commercial issues. The central role for the European Court of Justice must be envisaged as a part of politically oriented procedure. There must be no role for the European Court of Justice or any Union to set the pace of political communication. The latter reflects the interest of Great Britain to simplify economic relations, which means that, firstly, disputes are resolved by independent arbiters; secondly, the EU acknowledges the UK’s right to diverge from European regulations; and thirdly, the UK accepts the EU’s right to impose countervailing duties to compensate for adverse effects of divergence on competition. This article also examines the main problems of future British regulatory policy, especially in the field of state aid. Boris Johnson’s government has decided not to form a full-fledged regulatory regime in the area of state aid. Its stance is politically appropriate since Conservative party manifesto for the 2019 general election promised to support local industries without limitations. But that decision created a great deal of economic risk. Firstly, the absence of a domestic subsidy control regulator can cause chaos within regulation system because workable norms and rules can only be sustained by a tight enforcement mechanism. Secondly, the EU can cite lack of subsidy control as an obstacle for British business to have unrestricted access to the European market.

Standards for Independent Oversight

2017 ◽  
Author(s):  
Nico van Eijk
Keyword(s):  
The Netherlands ◽  
European Court Of Justice ◽  
Data Retention ◽  
Digital Rights ◽  
National Courts ◽  
Court Of Justice ◽  
Intelligence Services ◽  
European Court ◽  
The Uk ◽  
Point Of Departure

The point of departure for this chapter is the decision of the European Court of Justice in the Digital Rights Ireland case, which annulled the European Data Retention Directive, in part because the use of retained data was not made subject to independent oversight. Next, it examines judgments from the national courts of the Netherlands and the UK, also focusing on the independent oversight issue, declaring invalid the data retention laws of those two countries. From the Digital Rights Ireland case and others, seven standards for oversight of intelligence services can be drawn: the oversight should be complete; it should encompass all stages of the intelligence cycle; it should be independent; it should take place prior to the imposition of a measure; it should be able to declare a measure unlawful and to provide redress; it should incorporate the adversary principle; and it should have sufficient resources.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

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