scholarly journals Participatory Democracy in EU and Australia International Investment Law Policy Processes

2016 ◽  
Vol 18 (1) ◽  
pp. 20-71
Author(s):  
James Day
Keyword(s):  
Case Studies ◽  
Free Trade ◽  
Participatory Democracy ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
International Investment ◽  
International Investment Law ◽  
The People ◽  
Investment Law ◽  
The Eu

This paper turns to the popular field of international investment law, but rather than assessing the consequences of the various bilateral and free trade agreements that dominate this area, it looks at how these agreements are made. Particularly, in an area that is perceived as wanting in legitimacy, it analyses the structures that are involved in making these agreements and assesses them against principles of participatory democracy. Using three participatory sub-principles of openness, inclusiveness and responsiveness as benchmarks, it comments on just how involved the people of the EU and Australia are in making their respective international investment law policies. It uses the recent and ongoing TTIP and TTP negotiations as principal case studies. Ultimately, it concludes that, while both subjects inherit strong foundations for the participation of its people and their processes are not as dismissive as is perhaps publicly perceived, both have a way to go in being truly participatory.

Special Issue: International Investment Arbitration in Southeast Asia

2017 ◽  
Vol 18 (5-6) ◽  
pp. 767-792 ◽  
Author(s):  
Luke Nottage ◽  
Sakda Thanitcul
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Case Law ◽  
International Investment ◽  
Member States ◽  
International Investment Law ◽  
Relative Paucity ◽  
Investment Arbitration ◽  
Investment Law

Abstract The dynamic economies of the Association of Southeast Asian Nations (ASEAN) have individually concluded many standalone bilateral investment treaties (BITs) and a growing number of bilateral and regional free trade agreements (FTAs), supplemented by intra-ASEAN and ‘ASEAN+’ agreements. These aim to facilitate and protect burgeoning foreign direct investment (FDI) flows, outlined in Part 2, including large outflows recently from several states. Part 3 outlines treaty-making trends, including considerable consistency from many member states as well as some interesting innovations, against the backdrop of persistent problems of poor governance. Part 4 highlights nonetheless the relative paucity of investor-state dispute settlement (ISDS) claims against ASEAN member states, with only a few adverse awards, which helps explain why treaty-based ISDS has not been abandoned. Part 5 also notes several contributions from this ISDS case law to international investment law, and Southeast Asia’s potential to keep influencing its trajectory.

Opinion 1/17

2020 ◽  
Vol 187 ◽  
pp. 544-687
Keyword(s):  
European Union ◽  
Free Trade ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
International Investment ◽  
Legal Order ◽  
Eu Law ◽  
Court Of Justice ◽  
New Generation ◽  
The Eu

Economics, trade and finance — Free trade agreements — International investment — “New generation” free trade agreements — Comprehensive Economic and Trade Agreement, 2016 (“CETA”) — Whether CETA’s investor–State dispute settlement provisions compatible with EU primary law — Principle of autonomy of EU legal order — Principle of equal treatment — Requirement of effectiveness of EU law — Right of access to an independent and impartial tribunal — Article 47 of Charter of Fundamental Rights of the European Union, 2000Treaties — Interpretation — Application — Free trade agreements — International investment — “New generation” free trade agreements — CETA — European Union and non-member States Parties to international agreement — Agreements integral part of EU law and subject of references for preliminary ruling to Court of Justice of the EU — Compatibility of agreements with EU Treaties, constitutional principles and EU Charter — Court of Justice of the EU having jurisdiction to interpret and apply agreements — Whether jurisdiction of Court of Justice of the EU taking precedence over jurisdiction of court of non-member State — Reciprocal nature of international agreements — Maintenance of powers of European Union in international relations — Whether jurisdiction of Court of Justice of the EU taking precedence over jurisdiction of international courts and tribunals established by agreements — Whether EU law precluding agreement from providing for creation of tribunals — Whether EU law precluding agreement from conferring jurisdiction on those tribunals to interpret and apply provisions of agreement having regard to rules and principles of international law applicable between Parties — Whether conditions applicableJurisdiction — Court of Justice of EU — EU and non-member States Parties to international agreement — CETA — Court of non-member State — Agreement providing for creation of tribunals — Agreement conferring jurisdiction on those tribunals to interpret and apply provisions of agreement having regard to rules and principles of international law applicable between Parties — Whether precluded by EU law — Whether jurisdiction of Court of Justice of EU having precedence — Whether CETA conferring jurisdiction on CETA Tribunal to interpret or apply EU law — Whether CETA adversely affecting autonomy of EU legal order545Damages — CETA Tribunal — CETA Appellate Tribunal — Whether CETA tribunals having jurisdiction to award damages to Canadian investors for loss suffered through EU acts of general application setting the level of protection of a public interest adversely affecting autonomy of EU legal order — Whether damages granted for a fine for breach of EU competition law found to constitute an infringement of CETA undermining the principle of effectiveness of EU lawInternational tribunals — CETA Tribunal — CETA Appellate Tribunal — Whether Article 47 of Charter of Fundamental Rights of the European Union, 2000 applicable to dispute resolution fora created by EU’s international agreements — Whether CETA tribunals satisfying requirements of accessibility, independence and impartiality — Whether small and medium-sized enterprises’ right of access to CETA tribunals impaired by the “loser pays” principle — Whether powers of CETA Joint Committee to appoint and remove Members of CETA tribunals, to determine their remuneration and to issue binding interpretations of CETA respecting requirement of independence — Whether CETA sufficiently guaranteeing impartiality of Members of CETA tribunals vis-à-vis disputing parties and government of their State of originJurisdiction — CETA Tribunal — CETA Appellate Tribunal — Whether CETA tribunals having jurisdiction to assess compatibility of EU acts of general application setting the level of protection of a public interest adversely affecting autonomy of EU legal orderRelationship of international law and municipal law — EU law as domestic law — Application or interpretation of domestic law as a matter of fact — Whether power of CETA tribunals to take EU law into account as a matter of fact compatible with principle of autonomy of EU legal orderTreaties — Free trade agreements — International investment — “New generation” free trade agreements — CETA — Equal treatment of Canadian and EU investors — Whether granting access to CETA’s investor–State dispute settlement provisions for investments made in EU only to Canadian investors constituting discrimination — Whether Canadian and EU investors investing in EU in comparable situations — The law of the European Union

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

2019 ◽  
Vol 32 (4) ◽  
pp. 781-800 ◽  
Author(s):  
Joanna Lam ◽  
Güneş Ünüvar
Keyword(s):  
Free Trade ◽  
Public Interest ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Forum Shopping ◽  
New Wave ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
The Eu

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

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