scholarly journals eu Law Constraints on Intra-eu Investment Arbitration?

2017 ◽  
Vol 16 (1) ◽  
pp. 71-86 ◽  
Author(s):  
Eirik Bjorge
Keyword(s):  
European Union ◽  
International Law ◽  
Arbitral Tribunal ◽  
Eu Law ◽  
The European Union ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
The Law

This article questions whether the law of the European Union (eu) can impose jurisdictional constraints on so-called intra-eu investment arbitration proceedings. Would an arbitral tribunal hearing an intra-eu case under either a bilateral investment treaty (bit) or under the Energy Charter Treaty (ect) have to declare itself incompetent to conduct the case proceedings owing to the operation of eu law? This article subjects that proposition to criticism, finding that, for a number of reasons, connected either with the drafting of the bit or the ect or the operation of general principles of international law, it does not withstand scrutiny. An arbitral tribunal seized of a treaty claim under a bit or the ect cannot rely on eu law to negate rights expressly granted under the instrument providing for its jurisdiction.

The Future of Intra-EU Investment Arbitration: Intra-EU Investment Arbitration under the ECT post Achmea

2019 ◽  
Vol 4 (1) ◽  
pp. 147-177
Author(s):  
Sahra Arif
Keyword(s):  
European Union ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Investment Arbitration ◽  
The Future ◽  
Energy Charter Treaty ◽  
Opposite View ◽  
The Relationship ◽  
The Eu

The Achmea judgment of the Court of Justice of the EU (CJEU) found that arbitration clauses in bilateral investment treaties (BITS) between Member States of the European Union are incompatible with European Union law. Following this, Member States attempted to invoke this judgment in relation to similar intra-EU arbitrations under the Energy Charter Treaty (ECT). Tribunals established under the ECT have however generally rejected the applicability of the Achmea judgement. While the EU Commission and the majority of Member States concluded that this judgment also precludes intra-EU ect arbitrations, a few Member States held the opposite view. The future of intra-EU ECT arbitrations therefore seems fragile in the least. A closer analysis of the decisions of ECT Tribunals, and the relationship between obligations under European Union law and international law however argues that the future of such intra-EU ECT arbitrations is not as fragile as it may seem.

scholarly journals El arbitraje de inversión en España tras la reciente doctrina del Tribunal de Justicia de la Unión Europea = Investment arbitration in Spain in light of recent jurisprudence from the European Union Court of Justice

2018 ◽  
Vol 10 (2) ◽  
pp. 866
Author(s):  
Ibon Hualde López ◽  
Victoria Sánchez Pos
Keyword(s):  
European Union ◽  
The Netherlands ◽  
Preliminary Ruling ◽  
The European Union ◽  
European Union Law ◽  
Arbitration Clause ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
German Court

  Resumen: El pasado mes de marzo el Tribunal de Justicia de la Unión Europea abrió una vía favo­rable para España al declarar, mediante la sentencia resolutoria de una petición de decisión prejudicial planteada por el Tribunal de casación alemán, que la cláusula de arbitraje incluida en el Tratado para el Fomento y la Protección Recíprocos de las Inversiones celebrado en 1991 entre el Reino de los Países Bajos y la República Federal Checa y Eslovaca (TBI) no es compatible con el Derecho de la Unión Europea. El presente trabajo tiene por objeto realizar un análisis de la mencionada sentencia, recaída el 6 de marzo de 2018, con el objetivo de valorar su incidencia en el arbitraje de inversión en nuestro país.Palabras clave: Tribunal de Justicia de la Unión Europea, petición de decisión prejudicial, arbitra­je de inversión, cláusula de arbitraje, Derecho de la Unión Europea.Abstract: This past March, the European Union Court of Justice provided a favorable opening for Spain when it held (by its judgement on a request for a preliminary ruling submitted by the German Court of Cassation) that the arbitration clause which had been included in the “Treaty on the Reciprocal Promotion and Protection of Investments” signed in 1991 between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (BIT) was not compatible with European Union law. This paper aims at analyzing the above-mentioned judgment, which was issued on 6 March 2018 (Case C-284/16), assessing its impact on investment arbitration in our country.Keywords: European Union Court of Justice, request for a preliminary ruling, investment arbitra­tion, arbitration clause, European Union Law. 

The Achmea Judgment and the Applicability of the Energy Charter Treaty in Intra-EU Investment Arbitration

2020 ◽  
Vol 23 (1) ◽  
pp. 271-292 ◽  
Author(s):  
J Robert Basedow
Keyword(s):  
European Union ◽  
European Commission ◽  
Union Member ◽  
European Union Member State ◽  
The European Union ◽  
Political Debate ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Energy Charter Treaty ◽  
European Union Member States

Abstract The Energy Charter Treaty is the most frequently used investment treaty worldwide to launch investment arbitration against host states. The vast majority of disputes is of intra-European Union nature in that they involve an EU investor as claimant and an European Union member state as respondent. The recent Achmea judgment of the Court of Justice of the European Union may thus have ramifications for the Energy Charter Treaty. The judgment has triggered a heated legal and political debate within the European Union over the future of intra-European Union investment arbitration. In the context of this debate, the European Commission claimed that the application of the Energy Charter Treaty in intra-European Union investment disputes is based on an incorrect interpretation of this treaty. This article critically assesses the Commission’s statement by evaluating the travaux préparatoires of the Energy Charter Treaty as a supplementary means of interpretation. It finds that the European Union member states and the European Commission in all likelihood opted for a mixed ratification for legal reasons rather than to ensure its intra-European Union applicability. Indeed, the EU initially pushed for a disconnection clause to prevent the application of the Energy Charter Treaty in intra-European Union relations but dropped this request during the negotiations. At least from a historical perspective then, the Commission’s claim that the Energy Charter Treaty is not meant to apply in intra-European Union relations is inaccurate in that the European Union consciously accepted this possibility.

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.

Intra-European Union investor–State arbitration post-Achmea: RIP? An assessment in the aftermath of the Court of Justice of the European Union, Case C-284/16, Achmea, Judgment of 6 March 2018, EU:C:2018:158

2019 ◽  
Vol 26 (2) ◽  
pp. 316-340 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Adverse Effect ◽  
European Union ◽  
Dispute Settlement ◽  
Bilateral Investment Treaties ◽  
The European Union ◽  
European Union Law ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
The Future ◽  
Principle Of Discrimination

In its judgment in Case C-284/16 Achmea, the Court of Justice of the European Union declared the investor–State dispute settlement provisions included in intra-European Union Bilateral Investment Treaties incompatible with European Union law. The court based its finding on the adverse effect on the autonomy of European Union law, while avoiding a discussion of other grounds of potential incompatibilities (such as compatibility with the principle of discrimination or substantive incompatibilities). This article presents the judgment of the court and provides an account of its implications for the future of intra-European Union investment arbitration.

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