scholarly journals Why Europe Should Reconsider its Anti-Arbitration Policy in Investment Disputes

2019 ◽  
Vol 2 (1) ◽  
pp. 6-30
Keyword(s):  
Dispute Resolution ◽  
Ad Hoc ◽  
International Investment ◽  
The Other ◽  
The European Union ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
Wrong Direction ◽  
Current Change ◽  
The Eu

This paper addresses the current challenges to investor-state arbitration in Europe. Two parallel developments are outlined: the current change in the EU policy towards arbitration provisions in multilateral and bilateral investment treaties, and the consequences of the Achmea case decided by the Court of Justice of the European Union in March 2018. The author analyses the critical arguments behind the current European anti-arbitration stance and concludes that while some of them (but not all) may have some foundation, a sufficient number of reasons speak against the radical dismantling of the system of international investment arbitration. An analysis of the proposed alternatives shows that they fail to deliver viable solutions for diagnosed problems. In particular, the replacement of ad hoc tribunals by a multilateral investment court (MIC) seems to be a step in the wrong direction. The ISDS has played an important role in the global fostering of international investment by securing a basically fair system of dispute resolution in a very specific field. Its deficiencies are not beyond repair; on the other hand, the alternatives offered suffer from flaws that are the same or much more troubling. The author concludes that the consequences of the ‘change of tide’ in the approach to investor-state dispute resolution are likely to be detrimental to the very goals of those who advocate the abandoning of investment arbitration.

‘But the Last Word Is Ours’: The Monopoly of Jurisdiction of the Court of Justice of the European Union in Light of the Investment Court System

2019 ◽  
Vol 30 (4) ◽  
pp. 1187-1220
Author(s):  
Francisco de Abreu Duarte
Keyword(s):  
European Union ◽  
General Framework ◽  
External Action ◽  
The Other ◽  
Court System ◽  
The European Union ◽  
Court Of Justice ◽  
The One ◽  
The Eu

Abstract This article develops the concept of the monopoly of jurisdiction of the Court of Justice of the European Union (CJEU) through the analysis of the case study of the Investment Court System (ICS). By providing a general framework over the criteria that have been developed by the Court, the work sheds light on the controversial principle of autonomy of the European Union (EU) and its implications to the EU’s external action. The work intends to be both pragmatic and analytical. On the one hand, the criteria are extracted as operative tools from the jurisprudence of the CJEU and then used in the context of the validity of the ICS. This provides the reader with some definitive standards that can then be applied to future cases whenever a question concerning autonomy arises. On the other hand, the article questions the reasons behind the idea of the monopoly of jurisdiction of the CJEU, advancing a concept of autonomy of the EU as a claim for power and critiquing the legitimacy and coherence of its foundations. Both dimensions will hopefully help to provide some clarity over the meaning of autonomy and the monopoly of jurisdiction, while, at the same time, promoting a larger discussion on its impact on the external action of the EU.

Report of the 4th EFILA Annual Conference 2019

2019 ◽  
Vol 4 (1) ◽  
pp. 301-357
Author(s):  
José Rafael Mata Dona
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Investment Policy ◽  
Annual Conference ◽  
Full Time ◽  
The European Union ◽  
Energy Investment ◽  
International Investment Law ◽  
The Eu

On 31 January 2019, Herbert Smith Freehills kindly hosted in London the 4th EFILA Annual Conference on the “European Union (EU) and the future of International Investment Law and Arbitration”. The EU’s external investment policy and its investment policy towards Asia featured as the topics of the first two panels, which were followed by a keynote speech on the construction of a Multilateral Investment Court (MIC). The conference’s last panel dealt with the EU’s energy investment policy. This report presents the most relevant developments behind the EU’s external investment policy until the end of January 2019, its implementation towards Asia and influence in new global trends in investor-State dispute settlement. Further, it confronts the arguments of followers and detractors of the idea of a permanent standing two-tier mechanism with full-time adjudicators, which is promoted by the EU as the only option that can successfully respond to all the problems and challenges of the current ad hoc system. Finally, it conveys both the EU’ and investors’ needs in the construction of new carbon-friendly infrastructure and their enquiries into the modernisation process of the Energy Charter Treaty.

The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime

2017 ◽  
pp. 585-627 ◽  
Author(s):  
N. Jansen Calamita
Keyword(s):  
New York ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
The European Union ◽  
New Model ◽  
Investment Treaty ◽  
New Process ◽  
New York Convention ◽  
The Eu

In its recent treaties, the European Union (EU) has established a new model of investor-State dispute settlement (ISDS). The EU’s new model entails the replacement of ad hoc arbitration with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. Awards produced by the EU’s new process will be subject to appellate review on issues of law and fact. The EU has indicated that it will pursue a treaty to multilateralize its new tribunal system. This article addresses the compatibility of the EU’s new ISDS model with existing instruments of the investment treaty regime: first, whether the introduction of an appellate mechanism or, indeed, the total reworking of ISDS to establish investment tribunals, renders instruments like the ICSID Convention and the New York Convention inapplicable to the modified process of ISDS; second, how the integration of any appellate mechanism with existing international investment treaties might technically be achieved.

scholarly journals Will the European Union accede to the European Convention on Human Rights? ‘Before’ and ‘after’ the Opinion 2/13 of the ECJ

2020 ◽  
pp. 370-381
Author(s):  
Olena Polivanova ◽  
Olga Poberezhna
Keyword(s):  
European Union ◽  
Human Rights ◽  
Ad Hoc ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
Long Run ◽  
Before And After ◽  
Long Time ◽  
The Eu

The article examines the European Union’s accession to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. To this end, two stages of accession are being examined: the stage before the Court of Justice of the European Union delivered its Opinion 2/13 of 18 December 2014 on the compatibility of the Draft agreement on the accession of the European Union to the Convention with the Treaty on the European Union and the Treaty on the Functioning of the European Union and the stage after this Opinon. In the frames of the first stage the prerequisites for the Court of Justice of the European Union’s making the Opinion 2/13, the content of the Draft agreement on the accession of the European Union to the Convention and the main provisions of the legal position of the Court of Justice of the European Union regarding the incompatibility of the Draft agreement on the accession of the European Union to the Convention are analysed. The second stage of the accession examines the intentions and real steps of the institutional mechanism of the European Union and the Council of Europe’s bodies for the implementation of accession, as well as possible ways of eliminating the inconsistencies of the Draft agreement on the accession of the European Union to the Convention identified by the Court of Justice of the European Union in its Opinion 2/13. Considering that the preparation of the first draft of the EU accession agreement to the Convention took about three years, noting the lack of an updated draft accession agreement (which could have taken into account the position of the European Union Court of Justice expressed in its Opinion 2/13), taking into account the necessity of the compatibility assessment of the new draft agreement on the accession of the European Union to the Convention with the EU by the European Union Court of Justice, there is a reason to believe that the issue of the accession of the European Union to the European Convention on Human Rights will have been open for a long time. At the same time, following the adoption of the Opinion 2/13, both the Commission of the European Union and the European Parliament have repeatedly confirmed the continuity of the European Union’s course for accession, and the fact that in early 2020 it was decided to extend the deadlines for the development of legal instruments establishing models of the European Union’s accession to the Convention in the ad hoc group cannot but confirm the perspective of accession at least in the long run.

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.

Enforcement Actions

2018 ◽  
Author(s):  
Luca Prete
Keyword(s):  
European Union ◽  
International Law ◽  
Dispute Resolution ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Public International Law ◽  
Court Of Justice ◽  
Legal Procedures ◽  
The Eu

The enforcement of EU law on non-compliant national authorities has, at its heart, infringement proceedings brought pursuant to Articles 258 to 260 TFEU. That focus is embedded in the scheme of the EU Treaties. In that regard, infringement proceedings are a particular feature of the EU legal order. As the Court of Justice stated in one of its first cases, ‘it is a procedure far exceeding the rules heretofore recognized in classical international law, to ensure that obligations of States are fulfilled’. Indeed, under the rules of public international law, there is no obligation to settle disputes or to establish formal and legal procedures for dispute resolution, which, where they exist, always depend on the consent of the parties concerned. By contrast, the jurisdiction of the Court in cases of EU law infringements by Member States is compulsory and constitutes a corollary to membership in the European Union.

scholarly journals Global identity management for individuals? The right to be forgotten and issues of extraterrioriality

2018 ◽  
Vol 331 ◽  
pp. 91-102
Author(s):  
Petra Lea Láncos
Keyword(s):  
Practical Problem ◽  
Identity Management ◽  
The Other ◽  
Business Activity ◽  
The European Union ◽  
Global Identity ◽  
National Courts ◽  
Court Of Justice ◽  
The Right ◽  
The Eu

The Google Spain ruling of the Court of Justice of the European Union has received much attention (and criticism) both in Europe and the other side of the Atlantic. In this paper I present the decision, focusing on it novel elements and the issues of extraterritoriality. I analyse the problems of extraterritoriality as a function of jurisdiction relying on the presence or absence of links to the EU through the location of establishment, equipment or the target of business activity. Next, I discuss the arguments promoting and rejecting the global application of Rtbf by search engine operators. Finally, I consider extraterritoriality as a practical problem, the solutions offered by scholarship and national courts, as well as their effect on corporations.

A Sceptical Analysis of the Enforcement of ISDS Awards in the EU Following the Decision of the CJEU on CETA

2020 ◽  
Vol 5 (1) ◽  
pp. 92-145
Author(s):  
Brady Gordon
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
European Law ◽  
Eu Law ◽  
The European Union ◽  
Investment Arbitration ◽  
Formal Procedures ◽  
The Eu

This paper provides a sceptical analysis of the enforcement of investor-state dispute settlement (ISDS) awards against the European Union or its Member States in a conflict with EU norms following Opinion 1/17 of the CJEU on the Canada-EU Comprehensive Economic and Trade Agreement (CETA). It argues that the CETA decision has obscured, but has failed to alleviate, three fundamental incompatibilities between sui generis doctrines of EU law and essential tenets of international investment arbitration. It is not at all clear whether the CJEU accepts the jurisdiction of the ISDS tribunal in Chapter 8-F of CETA to rule on a breach of CETA contrary to the CJEU’S interpretation of the validity of EU acts under the EU’s own rules, and the CETA decision does nothing to modify the formal procedures and doctrines by which the autonomy and supremacy of EU law have supplanted conflict of law norms permitting the application of arbitral awards over conflicting European law. The article cautions that Canadians may prove little better able to enforce arbitral awards against deprivations of CETA rights by EU norms than if the cjeu had simply ruled that the CETA Tribunal must be subsumed within the EU court system itself.

Spelling It Out−Convergence and Divergence in the Judicial Dialogue between cjeu and ECtHR

2019 ◽  
Vol 88 (3) ◽  
pp. 429-458
Author(s):  
Amalie Frese ◽  
Henrik Palmer Olsen
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
The Other ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Content Search ◽  
Convergence And Divergence ◽  
The Relationship ◽  
The Eu

In this article we investigate the relationship between the Court of Justice of the European Union and the European Court of Human Rights as it manifests in explicit cross-references between the two Courts’ jurisprudence. The analysis detects cross-references, how they are used and indications of converge or divergence in the jurisprudence through their explicit citations and references. Our dataset consists of the entire corpus of judgments from both Courts from 2009 (when the EU Charter on Fundamental Rights came into force and until the end of 2016. On the basis of a content search for references to the other Court in both corpora we detect all their cross-references. We find that 1) the Courts’ use each other’s case law surprisingly little, but when they do, it is 2) primarily within the legal domains of criminal justice and immigration policies, and 3) displaying convergence towards the jurisprudence of the other Court.

Avrupa’ya Türk göçü: Almanya örneği

2014 ◽  
Vol 1 (1) ◽  
pp. 47-56
Author(s):  
Milan Palat
Keyword(s):  
Network Theory ◽  
Quantitative Methods ◽  
Positive Relationship ◽  
Time Lag ◽  
Theoretical Concept ◽  
Living Standards ◽  
The Other ◽  
The European Union ◽  
Effective Mechanism ◽  
The Eu

Bu çalışmanın amacı, Türkiye’den göç ve Almanya’nın ekonomik göstergeleri arasındaki ilişkiyi, nicel metot yöntemleri kullanarak değerlendirmektir. Türkiye’nin belirsiz Avrupa ile bütünleşme beklentilerine rağmen  Avrupa Birliğinin köklü üyelerine olan Türk göçü devam edecektir. Çok sayıda Türk azınlığın yaşadığı ve hayat standartlarının yüksek olduğu Almanya, Hollanda ve Fransa’ya  büyük bir göç dalgası gerçekleşebilir. Çalışmanın istatistiksel bölümünün sonuçları, toplam göç ile gayri safi yurtiçi hasıladaki büyüme arasında pozitif, toplam göç ile işsizlik arasındaki negatif ve tahmin edilen bağımlılık yönüyle uygunluk içerisinde olan toplam göç ile aylık gelir arasında pozitif ilişki olduğunu göstermektedir. Türkiye’den göçle işsizlik arasındaki ilişki, toplam göçle olan ilişkiden daha düşüktür. Ancak, Almanya’daki yabancı mevcudiyeti ile Türkiye’den göç arasında bir ilişki bulunmaktadır. Bu durum, var olan göçmen topluluğunun olduğu yerin, yeni göçmenleri, köken bağlarına dayanarak cezbetmesi ve maliyet- riskler sebebiyle göçün düşük seviye de olduğuna dayanan kuramsal Ağ teorisi görüşü ile uygunluk göstermektedir. Göç ve işsizlik arasında gözlenen ilişki, Almanya’ya göçün  işgücü piyasasında talepte meydana gelen değişime karşılık geldiği gerçeğini göstermektedir. İşsizlik ve göç olgularının meydana geliş zamanlarında bir aralık  olsa bile  göç, Alman emek pazarında var olan dengesizliklerin azaltılmasında nispeten etkili bir mekanizma gibi görünmektedir. ENGLISH TITLE & ABSTRACTTurkish Immigration to the European Union: The Case of GermanyThe objective of the paper was to evaluate the relationships between immigration from Turkey and economic indicators in Germany using  quantitative methods. Despite Turkey’s unclear European integration prospects, it is predicted that Turkish immigration to  established member countries of the EU will continue. The strongest waves may flow to Germany, Netherlands or France, where numerous Turkish minorities are already present and where the living standards are high. Results from the statistical analysis of the paper showed a positive correlation between immigration total and the growth of gross domestic product. On the other hand, a negative correlation of immigration total and unemployment was found and a positive relationship between immigration total and income total which is in agreement with the expected dependency direction. With regards to  immigration from Turkey it is less correlated to unemployment than immigration total. But there is a correlation between immigration from Turkey and the stock of foreigners in Germany This is in accordance with the theoretical concept of network theory where an existing community of migrants keeps attracting new migrants because the costs and risks associated with migration are lower, thanks to established linkages to the country of origin. The observed correlation of migration and unemployment points to the fact that immigration to Germany responds to changes in demand in the labour market. Even though a time lag may occur in the case of unemployment and immigration, migration appears to be a relatively effective mechanism to offset existing imbalances in German labour markets. 

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