Do investor-to-state dispute settlement mechanisms fit in the EU legal system?

elni Review ◽  
2014 ◽  
pp. 30-38
Author(s):  
Andrea Carta
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Eu Law ◽  
Public Authorities ◽  
Eu Policy ◽  
Exclusive Jurisdiction ◽  
Administration Of Justice ◽  
Private Investors ◽  
The Right ◽  
The Eu

Investor-to-state dispute settlement (ISDS) mechanisms are a feature of international investment agreements (IIAs). They give private investors the right to initiate a claim against the State in which they made an investment, seeking redress against violations of an IIA concluded between that State and the investor’s home State. As it is explained in this paper, the current EU policy foresees the inclusion of ISDS in EU IIAs. This raises a number of critical issues, related: i) to the appropriateness of ISDS as a mechanism for the fair administration of justice, ii) to the risks that ISDS may affect public interest (e.g. environmental and health) laws, and iii) to the compatibility of ISDS with EU law. This article describes the framework underlying the inclusion of ISDS in EU IIAs and analyses the abovementioned issues. It discusses the concerns raised, particularly by NGOs, on the potential impact of ISDS on EU and Member States’ regulatory powers. The article outlines the EU policy on ISDS, examines some critical aspects of ISDS as a mechanism for the administration of justice, using the CETA provisions as reference, and illustrates the threats posed by ISDS to environmental and health regulations. It also highlights the challenges in preserving public authorities’ regulatory space in the context of IIAs. Furthermore, this article deals with the compatibility of ISDS with the exclusive jurisdiction of the CJEU and the principle of autonomy of EU law, and concludes with some final remarks.

International Investment Agreements, 2015–2016

2017 ◽  
Author(s):  
Coleman Jesse ◽  
Johnson Lise ◽  
Sachs Lisa ◽  
Gupta Kanika
Keyword(s):  
Dispute Settlement ◽  
Codes Of Conduct ◽  
International Investment ◽  
Decision Makers ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
The Right ◽  
Investment Agreements ◽  
The Eu

This chapter considers developments in 2015 and 2016 that illustrate trends and features in recent treaty drafting. It first discusses the expanded awareness of, and interest in, the investment regime that has emerged in recent years, followed by the role of ratification in the context of investment treaty drafting and policy. It then discusses four drafting trends: (1) constraining investor access to dispute settlement and limiting arbitral discretion; (2) better protecting the right to regulate; (3) establishing investor obligations; and (4) introducing codes of conduct for decision makers in investment disputes. Finally, the chapter provides a brief overview of new provisions regarding the conduct and qualifications of arbitrators, including a glimpse at the EU proposal for a multilateral court.

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.

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.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

scholarly journals The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

2020 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Judicial Independence ◽  
Court System ◽  
Eu Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Right ◽  
Right Of Access ◽  
The Eu

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

Destituent Power

2020 ◽  
pp. 123-138
Author(s):  
Markus Patberg
Keyword(s):  
Civil Disobedience ◽  
Popular Sovereignty ◽  
The Political ◽  
Constitutional Change ◽  
Constituent Power ◽  
Public Authorities ◽  
Protest Movements ◽  
The Public ◽  
The Right ◽  
The Eu

This chapter takes up the public narrative of ‘We, the multitude of Europe’, which suggests that the only hope for progressive change in the EU lies in a politics of disruption, and asks whether this idea can be defended based on a systematic model. To that end, it resorts to the political theory of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. Distinguishing between anti-juridical and juridical conceptions of destituent power, the chapter discusses to what extent the disruptive political strategies put forward by protest movements in the EU can be regarded as justifiable. Focusing on the juridical strand as the more plausible one, it argues that ideas of destituent power as ‘state civil disobedience’ run into a problem of authorization. By contrast, popular sovereignty-based approaches illuminate a neglected dimension of constituent power: the right to dismantle public authorities without the intention to create new ones. While such a model of destituent power in part captures the actions and demands of EU protest movements, it can only complement, not replace, the constructive side of constituent power.

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.

scholarly journals Google LLC v. Commission nationale de l'informatique et des libertés (CNIL)

2020 ◽  
Vol 114 (2) ◽  
pp. 261-267
Author(s):  
Monika Zalnieriute
Keyword(s):  
Search Engine ◽  
Data Privacy ◽  
Freedom Of Information ◽  
Eu Law ◽  
The European Union ◽  
National Data ◽  
Eu Member States ◽  
Court Of Justice ◽  
The Right ◽  
The Eu

In Google LLC v. Commission nationale de l'informatique et des libertés (CNIL), the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” de-referencing requests to be carried out by a search engine operator on search engine versions accessible in EU member states, as opposed to all versions of its search engine worldwide. While the ruling has been perceived as a “win” for Google and other interveners, such as Microsoft and the Wikimedia Foundation, who argued against worldwide de-referencing, the Court also made clear that that while the EU law does not currently require worldwide de-referencing, “it also does not prohibit such a practice” (para. 72). As a result, the CJEU found that an order by a national supervisory or judicial authority of an EU member state requiring worldwide de-referencing in accordance with its own national data protection laws would not be inconsistent with EU law where the data subject's right to privacy is adequately balanced against the right to freedom of information. By leaving the door to extraterritorial de-referencing wide open, the CJEU continues to pursue its post-Snowden hard-line stance on data privacy in a manner that is likely to transform the data privacy landscape.

scholarly journals The Right to Life Under the EU Charter and Cooperation with Third States to Combat Human Smuggling

2020 ◽  
Vol 21 (3) ◽  
pp. 436-458
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Fundamental Rights ◽  
Human Smuggling ◽  
Right To Life ◽  
Policy Documents ◽  
Migration Policies ◽  
Eu Policy ◽  
Charter Of Fundamental Rights ◽  
Alternative Measures ◽  
The Right ◽  
The Eu

AbstractAccording to EU policy documents, “[s]aving lives of people in distress is a primary goal of EU action in relation to managing the EU external borders.” The EU preferred strategy to achieve this objective is to take measures against human smuggling—including the establishment of cooperation with third countries—ostensibly so that migrants are contained and their irregular movement is prevented. This Article examines whether this strategy complies with the positive obligations corresponding to the right to life as enshrined in Article 2 of the EU Charter of Fundamental Rights. After considering any formal obstacles that might prevent the activation of the Charter, this Article clarifies the factors that determine the scope of these positive obligations. Procedural and substantive obligations are then distinguished. The procedural positive obligation demands that the EU and its Member States (MS) consider alternatives to the measures of containment. Due to difficulties in assessing the reasonableness of such alternatives, the EU and the MS are also under the positive obligation to initiate studies that can provide reliable evidence that alternative measures—such as the possibility of issuing humanitarian visas—would be too burdensome. As to the substantive positive obligation corresponding to the right to life, this Article will argue that the EU and the MS need to be attentive about the cumulative outcome of their migration policies. The more successful they are in their indiscriminate containment policies—and the more unlikely any protection possibilities in the region of containment—the more likely it is that the positive obligation to protect life will remain unfulfilled.

Article 197 TFEU

2019 ◽  
Author(s):  
Sacha Garben
Keyword(s):  
Mutual Recognition ◽  
Legal Framework ◽  
Direct Application ◽  
Free Movement ◽  
Eu Law ◽  
Specific Mechanism ◽  
Public Authorities ◽  
Free Movement Of Goods ◽  
The Many ◽  
The Eu

The effectiveness of the many rights and obligations under EU law rests on a legal framework consisting of direct application of Treaty rules, harmonized European rules, national rules, and mutual recognition, and the task of implementing and ensuring compliance with these rules lies, in practice, with a large number of public authorities in the twenty-eight MS. In order to carry out this task, MS’ authorities need to cooperate closely, meaning that administrative cooperation is not only desirable but is required by the very nature of the EU. In the context of the free movement of goods, many circulation regimes are accompanied by their own specific mechanism of administrative cooperation.

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