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.

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.

scholarly journals Does Investor-State Dispute Settlement Discriminate Against Nationals?

2020 ◽  
Vol 21 (2) ◽  
pp. 197-222
Author(s):  
Christian Riffel
Keyword(s):  
European Union ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Constitutional Court ◽  
Court System ◽  
The European Union ◽  
Constitutional Courts ◽  
European Court ◽  
Preliminary Injunction ◽  
Federal Constitutional

AbstractThis Article answers the question of whether investor-state dispute settlement (“ISDS”) discriminates against nationals by providing foreign investors with an extra avenue to challenge state measures. The complaint that ISDS is discriminatory as a matter of principle has surfaced before several European constitutional courts—including the German Federal Constitutional Court and the European Court of Justice—in connection with the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”). This Article rejects this complaint. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction to stop ratification. It will have to take a stand, however, in the principal proceedings. If the Court were to side with the applicants, it would sound the death knell not only for the CETA in its present form, but also for the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance in a European constitutional law context. Whether ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are addressed.

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.

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).

ANTI-SUIT INJUNCTIONS IN ARBITRAL AWARDS: ENFORCEMENT IN EUROPE

2015 ◽  
Vol 74 (3) ◽  
pp. 412-415
Author(s):  
Ewelina Kajkowska
Keyword(s):  
European Union ◽  
Member State ◽  
State Courts ◽  
The European Union ◽  
Court Of Justice ◽  
The Status ◽  
Recognition And Enforcement ◽  
The Relationship ◽  
Brussels Regulation

THE status of anti-suit injunctions in Europe has long given rise to controversy. The decision of the Court of Justice of the European Union in Case C-536/13, Gazprom OAO [2015] All E.R. (EC) 711 sheds a new light on the relationship between anti-suit injunctions and the European jurisdiction regime embodied in the Brussels Regulation (Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). In this much anticipated judgment, the Court of Justice confirmed that, by virtue of the arbitration exclusion in Article 1(2)(d) of the Brussels Regulation, Member State courts are not precluded from enforcing anti-suit injunctions issued by arbitration tribunals and aimed at restraining the proceedings before Member State courts. Although the decision was given before the Recast Brussels Regulation came into force (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, effective from 10 January 2015), it can be assumed that the same conclusion would have been reached under the new law.

Opinion 1/17 (C.J.E.U)

2020 ◽  
Vol 59 (1) ◽  
pp. 89-131
Author(s):  
Jonathan Lim
Keyword(s):  
European Union ◽  
Trade Agreement ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice

On April 30, 2019, the Court of Justice of the European Union (CJEU) rendered Opinion 1/17 on the compatibility with European Union (EU) law of the Investment Court System (ICS) under the Comprehensive Economic and Trade Agreement between Canada and the European Union and its member states (CETA). In a momentous decision that is likely to have consequences beyond the CETA, a full court of the CJEU held that the ICS provisions were compatible with EU law.

African States, Investor–State Arbitration and the ICSID Dispute Resolution System: Continuities, Changes and Challenges 

2019 ◽  
Vol 34 (2) ◽  
pp. 296-364
Author(s):  
Uché Ewelukwa Ofodile
Keyword(s):  
Public Discourse ◽  
Dispute Settlement ◽  
Case Law ◽  
International Investment ◽  
Investment Arbitration ◽  
Resolution System ◽  
Fair And Equitable Treatment ◽  
The Status ◽  
Equitable Treatment ◽  
Dispute Resolution System

Abstract Against the backdrop of growing public discourse about the usefulness, legitimacy and effectiveness of the investor-State dispute settlement (ISDS) system, this article reviews the participation of African States in international investment arbitration and analyzes some of the cases involving African States in claims initiated under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “ICSID Convention”). Specifically, the article reviews ICSID cases involving African States in which decisions were reached on the merit [i.e. the tribunal determined whether the challenged measure breached any substantive obligation in an international investment agreement (IIA)]. Focus is on cases where claimants alleged violation of the fair and equitable treatment (FET) obligation and cases where expropriation, both direct and indirect were alleged. A review of cases involving African States suggests that there is no African peculiarity or specialty in terms of the awards and analysis of arbitral tribunals. In cases involving African States, ICSID tribunals appear to be guided primarily by the provisions of applicable texts (IIAs, contracts, and legislation) and ICSID case law rather than by the status of a Respondent State as developing or least developed. The paper raises important questions about the development dimension of the ISDS system or the lack thereof, and could contribute to current debates about ISDS reform and the need for sustainable development-oriented reform of IIAs more broadly. The paper also sheds light on the risks that broad and vague provisions in IIAs pose for host States and calls attention to the capacity constraints that limit meaningful IIA reform in Africa.

scholarly journals The appearance of bias in international investment arbitrators and analysis of potential impediments to bias in the European Union’s proposal for a multilateral investment court

2021 ◽  
Vol 13 (1) ◽  
Author(s):  
George Cadillac
Keyword(s):  
European Union ◽  
Developed Countries ◽  
International Investment ◽  
Positive Change ◽  
The European Union ◽  
The Public ◽  
Current Regime ◽  
Investment Arbitration ◽  
Grey Area ◽  
The Creation

ESAANZ ESSAY PRIZE WINNERInternational investment arbitration is in a controversial state. While the systems put into place by various treaties allow an investor to protect their investments directly by initiating proceedings against a government, claims of arbitrator bias are supported by the fact that arbitrators are appointed by the parties. There are transparency concerns which contribute to arbitrators being biased towards investors from developed countries. The regime of international investment arbitration is heading towards either abolition or reform. The European Union, being the partner to more investment treaties than any other country, proposes the creation of a multilateral investment court. As a structured arbitration court, there may be less bias than the current regime of investment arbitration as proceedings would be more transparent and open to the public, binding precedent would leave less grey area in decisions and add consistency to rulings, and judges no longer being appointed by the parties removes any incentive to rule in favour of their appointing party to secure future appointments. Together with an appeals system, this proposed structure purports to be a positive change in ISDS. However as the essay will show, this approach is not likely to be attractive to the majority of states who are interested in protecting their right to govern. These issues will need to be addressed if the investment court proposal is going to gain support.

South Korea and the European Union

2020 ◽  
Author(s):  
Sunghoon Park
Keyword(s):  
European Union ◽  
International Development ◽  
Trade Agreement ◽  
Leadership Role ◽  
Development Cooperation ◽  
Strategic Partnership ◽  
The European Union ◽  
Energy Education ◽  
Bilateral Relationship ◽  
The Status

Since the inauguration of the official diplomatic relationship between Korea and the European Union (EU) in 1963, the bilateral relations have continuously upgraded, to reach the status of a Strategic Partnership in 2010, which is supported by three key agreements—the Framework Agreement, the Free Trade Agreement (FTA) and the Framework Participation Agreement. The bilateral relationship has undergone profound changes around the mid-1980s, transforming it from an economy-focused and one-sided preferential relationship to a comprehensive and more equal partnership. Among others, the 2000s have been most dynamic and productive in upgrading the Korea–EU bilateral relationship. Not only EU’s policy initiatives such as the “Global Europe” strategy, but also Korea’s aspiration to play an increasingly important leadership role in regional and global arena have been instrumental in instituting the strategic partnership between Korea and the EU. Considering the past trajectory and recent development, the Korea–EU relationship appears to have a bright future. Stronger policy dialogues and common efforts, especially in climate change and energy, education and culture, and international development cooperation, are needed to make the bilateral relationship more meaningful and commensurate to the weight of the two parties in the global politics and economy.

scholarly journals The Free Trade Agreement and Investment Dispute Settlement Between the European Union and Vietnam: A Critical Assessment

2020 ◽  
Vol 3 (2) ◽  
pp. 43-83
Author(s):  
Umut Turksen ◽  
Ha T. Nguyen
Keyword(s):  
European Union ◽  
Free Trade ◽  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Good Governance ◽  
Trade Agreement ◽  
Open Market ◽  
The European Union ◽  
Stepping Stones ◽  
Investment Protection

Abstract The European Union (EU) is an open market economy, and against the rise of protectionism globally, the ‘Global Europe: Competing in the world’ communication of European Commission in 2006 reflected the EU perspective that Free Trade Agreements as alternatives can go further and faster in promoting openness and integration, by tackling issues which are not readily available for multilateral negotiations and by preparing the stepping stones for the next level of multilateral liberalization. After the prolonged negotiations and the EU’s legislative processes, the European Parliament gave its consent to both agreements of European Union – Vietnam Free Trade Agreement and Investment Protection Agreement on 12 February 2020. Those bilateral instruments promote enhanced transparency and regulatory best practices that are consistent with existing international norms or standards, also an important stepping stone and a show-case for the EU’s longer-term goal of a region-to-region (EU - Southeast Asia) trade deal. Those agreements have established a new two-level judicial structure with the strong judicial character (Investment Tribunal System – ITS) which Vietnam has accepted via legally binding commitments. It is important for Vietnam to follow the good governance standards and the rule of law principles. If the ITS works well, it will provide additional safeguards and guarantees to investors whereby FDI flows to Vietnam are likely to increase. Finally, the ITS regime provides a powerful incentive or a catalyst to review and modernize the domestic legal system of Vietnam not only to improve the investment eco-system in Vietnam but to pave the way for optimization of its economic potential and competitive power in the region (i.e. in the ASEAN).

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