scholarly journals THE QUESTION ON THE DISPUTE RESOLUTION SYSTEM IN THE EUROPEAN UNION’S NEW INVESTMENT AGREEMENTS

2021 ◽  
Author(s):  
Katarina Brockova
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Current System ◽  
Trade Agreement ◽  
International Investment ◽  
Practical Implementation ◽  
The European Union ◽  
Eu Member States ◽  
Dispute Settlement System ◽  
Investment Agreements

The system of resolving international investment disputes has been subjected to intense criticism from the professional and lay public in recent decades. The lack of transparency, predictability, coherence of arbitration awards and legitimacy of the investment arbitration system has led to an increase in efforts to reform the existing system. The European Union is not only one of the most vocal critics of the current system, but also one of its most active reformers. Since the entry into force of the Lisbon Treaty in 2009, the European Union has acquired exclusive competence in the realm of foreign direct investment as part of the common commercial policy. From that moment on, the European Commission began negotiating free trade agreements, many of which also include investment chapters. The most important ones are the Comprehensive Economic and Trade Agreement concluded between the European Union and Canada (2016), Agreement on Investment between the European Union and Singapore (2018), Agreement on Investment between the European Union and Vietnam (2019), as well as the Comprehensive Agreement on Investment between the European Union and People’s Republic of China, which has been agreed in principle at the end of 2020, even though the agreement has not yet been formally signed. In these treaties the European Union seeks to push for reform steps leading to the adjustment of the system for resolving international investment disputes in that they introduce a new system of investment courts that will gradually lead to the establishment of the multilateral investment court with the option of appeal at an appellate instance. This would undoubtedly increase the credibility, legitimacy and transparency of the entire system of internatnional investment dispute settlement. This paper aims to summarize, on the basis of an analysis of the relevant provisions of the trade and investment agreements concluded by the European Union over the last decade, the practical progress made by the European Union in reforming the international investment dispute settlement system. Since none of these treaties has become fully effective yet due to the lacking ratification of all EU member states, it will take several more years before we see full practical implementation of the discussed provisions.

scholarly journals Evaluating an International Investment Court for International Investment Disputes Under European Union’s Proposal

2020 ◽  
Vol 14 (2) ◽  
pp. 74
Author(s):  
Ahmed Arafa ◽  
Dexiang Guo
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
International Investment ◽  
International Community ◽  
Protection System ◽  
The European Union ◽  
Settlement System ◽  
Foreign Investors ◽  
Investment Protection ◽  
Dispute Settlement System

Berserk resentment of the existing framework regulating the international investment protection system and the operating of investment tribunals have direct to a prevalent perception that there is an immediate need for reform. This is especially pronounced having to do with Investor-State dispute settlement (ISDS), where there is an overall perception that it is not anything but an unfair and unbiased arbitration system available to decide disputes between states and foreign investors. Therefore, ISDS has been obtained a reputation for being non-transparent, one-sided, and contradictory in all decisions made by ISDS tribunals. The European Union (EU) has responded to this need, by proposing an international investment court; in this research, an attempt is making to look at this court, according to the European Union’s proposal. Moreover, the research explores the potential in creating this international investment court since a system can be drastically altered. However, some criticism can be addressed by international investment courts. However, specific steps can be taken to improve the international community’s investor-state dispute settlement system by re-valuating all the objectives and goals to solve international investment disputes.

scholarly journals International Investment Arbitration in the European Union

2021 ◽  
Vol 10 (1) ◽  
pp. 21-34
Author(s):  
Erika Bihari
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
The European Union ◽  
Investment Arbitration ◽  
The Status ◽  
Major Reform ◽  
Recognition And Enforcement

The author analyses the regulation of institutional arbitration under investor–state dispute settlement mechanisms, with an emphasis on such arrangements to which the European Union is a party. The functioning of the EU’s Investment Court System is presented in detail as a major reform to the status quo, along with some questions raised when qualifying this system as a means of arbitration, especially for the purposes of recognition and enforcement of decisions rendered, both in jurisdictions party to the Comprehensive Economic and Trade Agreement between Canada and the European Union and third countries. The latter problem is identified as a significant aspect of international investment arbitration.

Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?

2014 ◽  
Vol 15 (3-4) ◽  
pp. 585-611 ◽  
Author(s):  
Christian J. Tams
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
International Investment ◽  
Investment Policy ◽  
Public Consultation ◽  
The European Union ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
The Impact ◽  
Investment Agreements

Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).

EUROPEAN UNION IN WTO’S DISPUTE SETTLEMENT SYSTEM

2020 ◽  
Vol 4 (XX) ◽  
pp. 33-49
Author(s):  
Małgorzata Czermińska
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
World Trade Organisation ◽  
The European Union ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Dispute Settlement System ◽  
Trade Conflicts ◽  
Settlement Mechanism ◽  
Descriptive Method

The World Trade Organisation (WTO) serves as a forum for co-operation, currently for as many as 164 countries, and in addition, it allows for the resolution, also amicably, of trade conflicts between parties, consequently, settling disputes between them. One of essential provisions of the Uruguay Round (UR) of the General Agreement on Tariffs and Trade (GATT) included the introduction of a new dispute settlement mechanism, that is to say, the Dispute Settlement Understanding (DSU), which became effective on 1 January 1995. Member States of the European Union were not only actively involved in developing the rules of the international trade system, but they also influenced, to a large extent, the form of both such rules and of ongoing trade negotiations, as well as they assumed and still assume responsibility for the final arrangements. Hence, their role in the multilateral trade system is both active and passive. This paper aims to demonstrate the functioning of the WTO’s dispute settlement mechanism and show the role which the European Union serves in this system. The Article employs an analytical and descriptive method. It draws on sources from the national and international literature and WTO’s databases.

CJEU Judgment in Case C-284/16 Achmea: Single Decision and Its Multi-Faceted Fallout

2019 ◽  
Vol 18 (1) ◽  
pp. 3-32
Author(s):  
Bartosz Soloch
Keyword(s):  
International Investment ◽  
The European Union ◽  
International Investments ◽  
Eu Member States ◽  
National Courts ◽  
International Investment Agreements ◽  
The One ◽  
The Relationship ◽  
Investment Agreements ◽  
The Eu

Abstract Recent decisions of European and national courts, as well as those of arbitral tribunals, concerning the Achmea saga seem to be plentiful enough to draw preliminary conclusions as to the relationship between EU law, intra-EU international investment agreements (IIAs) and the national laws of EU-Member States. In order to get the proper picture of the situation, however, it is necessary not only to analyse the recent decisions of the Court of Justice of the European Union (CJEU) and their consequences from these three perspectives, but, equally, to understand how they interact with each other. Such an analysis indicates the real possibility of the emergence of a rift between the practice of the EU and national courts rejecting the validity of investment arbitration agreements, on the one hand, and investment tribunals, on the other. In any case, such a divergence would put into question the IIAs’ claim to provide a stable regulatory framework for international investments in the EU, which, in turn, would strengthen the argument for termination of intra-EU IIAs.

scholarly journals Regulatory autonomy and regulatory chill in Opinion 1/17

2020 ◽  
Author(s):  
Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
European Court ◽  
Negative Effect ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

Slowakische Republik (Slovak Republic) v. Achmea B.V.

2018 ◽  
Vol 112 (3) ◽  
pp. 466-472
Author(s):  
Björn Arp
Keyword(s):  
European Union ◽  
Slovak Republic ◽  
Trade Agreement ◽  
Federal Court ◽  
Eu Law ◽  
The European Union ◽  
Arbitration Clause ◽  
Grand Chamber ◽  
First Time ◽  
Investment Agreements

On March 6, 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU or Court) rendered its judgment in Slowakische Republic (Slovak Republic) v. Achmea B.V. (Achmea decision) in response to the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling. Deciding for the first time on the compatibility of the arbitration provision in bilateral investment treaties (BITs) with European Union (EU) law, the Court concluded that the investor-state arbitration clause in the Dutch-Slovak BIT was incompatible with EU law because it violated the principle of autonomy. The Court will soon respond to Belgium's request for an Opinion on the Canada-EU free trade agreement (FTA), where it will rule on the compatibility of extra-EU investment agreements with EU law.

The regime of international investments within the EC-Chile Association Agreement: towards a possible renegotiation?

2013 ◽  
pp. 352-380
Author(s):  
Jacopo Tavassi
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
The European Union ◽  
Dispute Settlement Mechanism ◽  
Public Interests ◽  
International Investments ◽  
Association Agreement ◽  
Eu Member States ◽  
Settlement Mechanism ◽  
The Eu

This paper aims at analyzing the Association Agreement concluded between the European Community, today European Union, and Chile, as it is believed that it can be, given its articulated regulatory and institutional framework, a good example of how similar treaties, in the field of international investments, can combine the protection of the foreign company’s rights with the promotion and respect of the host-State’s public interests. Besides, in the light of the amendments to the content and scope of the EU Common Commercial Policy made by Treaty of Lisbon, through which the European Union acquires an exclusive competence in the field of FDI, it seems likely that in the future the issue of FDI may fully fall within the scope of the said Association Agreement, excluding, in the relations between Chile and the single EU Member States, the application of the BIT in force. This might encourage the parties to introduce a chapter on the setting up of a dispute settlement mechanism also operating in the relationships between investors and host-States. Such progress, in fact, would be fully in line with the recent practice of Free Trade Agreements concluded by Chile with third countries, which entrust the resolution of conflicts between the foreign company and the host-State to international arbitration bodies.

scholarly journals Russia–Tariff Treatment: Identifying Systematic Violations of WTO Law

2018 ◽  
Vol 17 (2) ◽  
pp. 291-312
Author(s):  
KARA M. REYNOLDS ◽  
BORIS RIGOD
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Statistical Evidence ◽  
The European Union ◽  
Settlement System ◽  
General Measure ◽  
Systematic Treatment ◽  
Dispute Settlement System ◽  
The Eu

AbstractIn October 2014, the European Union requested consultations with Russia under the WTO's dispute settlement system regarding Russia's tariff treatment of various agricultural and manufacturing products. Although most of the measures challenged by the EU were individual tariff lines, the final measure in its complaint was a ‘more general measure’ referred to as the systematic duty variation. A WTO Dispute Panel eventually ruled that the EU failed to establish the systematic nature of the duty treatment afforded by Russia to certain products. In this paper, we explore the Dispute Panel's ruling, as well as how claims of systematic non-compliance are treated in other legal settings. We conclude by exploring whether future WTO Panels should instead consider statistical evidence of systematic treatment to promote compliance.

Inter-State Investment Dispute Settlement in Latin America: Is There Space for Transparency?

2016 ◽  
Vol 17 (4) ◽  
pp. 634-657
Author(s):  
María José Luque Macías
Keyword(s):  
Latin America ◽  
Dispute Settlement ◽  
International Investment ◽  
Attractive Alternative ◽  
Wto Dispute Settlement ◽  
International Investment Agreements ◽  
Treaty Interpretation ◽  
Dispute Settlement System ◽  
Investment Agreements ◽  
Inter State

Reinforcing inter-State dispute settlement gradually constitutes an attractive alternative in Latin America to overcome the lack of predictability in the interpretation and application of international investment agreements (IIA). Procedural transparency should certainly be part of this development. An initial question is whether, and if so to which extent, this approach serves reform. The next question is whether relying on the practice of the World Trade Organization (WTO) is appropriate to enhance transparency, considering that the WTO dispute settlement system has served as a model for introducing reforms in inter-State and investor-State dispute settlement (ISDS). This article shows that resorting to inter-State mechanisms may not remedy deficits of treaty interpretation or application. Furthermore, the WTO experience on procedural transparency reveals that transparency has not become an essential standard, so that other means shall be devised for ensuring, in inter-State dispute settlement, the degree of transparency attained so far in ISDS.

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