After the quite tumultuous 2018, which saw the seminal Achmea judgment of the Court of Justice of the European Union and the subsequent awards on jurisdiction by a number of investment treaty arbitration tribunals, 2019 comes as a sequence and furtherance to developments that were in process in the course of the previous year. The…

The recently leaked treaty for the termination of intra-EU BITs can be seen as the culmination of an ongoing effort by the European Commission to discourage investment arbitration between Member States, reflecting, in the eyes of many, a tension between public international law and EU law. In spite of this, and even after the Court…

The 98th Annual Meeting of the American Branch of the International Law Association (“ABILA”), known as ABILA’s International Law Weekend (“ILW”), took place in New York City on 10 – 12 October 2019. ILW, ABILA’s premiere annual event, featured 35 panels covering a broad range of topics of international law. This year, ILW had a…

The Cold War era brought to life, in a strange way, a number of all-encompassing treaties dealing with major subjects such as international treaty-making, diplomatic relations, law of seas, etc. Even among the topics covered by these treaties were enforcement of foreign arbitral awards and investment disputes. However, it seems like the world has already…

On 24 October 2019, the European Commission announced that the EU Member States have reached agreement on a plurilateral treaty for the termination of all ca. 190 intra-EU bilateral investment treaties (BITs). The agreement follows the political Declarations of the Member States issued in January this year in which they explained the consequences they are…

The tendency of arbitral tribunals constituted under the Energy Charter Treaty (ECT) to reject intra-EU jurisdictional objections, despite contrary views expressed by most EU member states, was recently continued in the case of Landesbank Baden-Württemberg (LBBW) and others v. Kingdom of Spain (ICSID Case No. ARB/15/45). The decision made by an ICSID tribunal over a…

The Effects of Achmea on the Prospective EU Member States  Much ink has been spilt on of the aftermath of the CJEU Achmea decision which has turned the world of arbitration on its head. In-depth analysis and commentary were previously featured on the Kluwer Arbitration Blog as well. Following the decision of the CJEU and…

In a striking new episode of the long-running Micula saga, the General Court of the CJEU has quashed the European Commission’s 2015 decision that Romania’s payment of the €178 million award rendered by an ICSID tribunal back in 2013 would constitute illegal State aid in the meaning of Article 107 of the TFEU. In its…

The session on International Investment Disputes of the LIDW 2019 was divided in three panels discussing the hot topics in investment law and the Investor-State Dispute Settlement (ISDS) system: investment protection post-Achmea, interim measures, security for costs, emergency arbitration procedures, and transparency in investment arbitration, as well as the wider issue of ISDS reform. The…

Introduction In September 2017, Belgium requested the opinion of the Court of Justice of the European Union (“CJEU”) on the compatibility with EU law of the Investment Court System (“ICS”) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (“CETA”). Last January, Advocate General Bot concluded that this mechanism for…

Introduction The approaching BREXIT, in conjunction with the recent Svea Court of Appeal‘s decision upholding largely an intra-European Union (EU) Stockholm Chamber of Commerce (SCC) award against Poland, provides the opportunity to further discuss the ramifications of the preliminary ruling by the Court of Justice of the EU (CJEU) in the Achmea case (Case C-284/16)….

The Lisbon Treaty granted to the EU the competences on Foreign Direct Investment (FDI). The exercise of those competences on FDI has not been smooth in the area of Investor-to-State Dispute Settlement (ISDS), in particular, regarding the application of ISDS between a Member State and the investor of another Member State either whether those ISDS…

The CERSA (CNRS- University Paris II Panthéon-Assas) organized its third event in a series of seminars on selected topics in international investment law and investor-state dispute settlement (ISDS) (for the report of the first seminar, see here). The seminar on Topical issues in ISDS: EU Investment Law was held in Paris on 7 February 2019…

With the proposed investment court system, the European Commission aims to limit criticism revolved around Investor-State Dispute Settlement due to its lack of legitimacy, transparency and appellate mechanism. The investment regime under Comprehensive Economic and Trade Agreement with Canada (hereinafter “CETA”) and European Union-Viet Nam Free Trade Agreement (hereinafter “EUVFTA”) could be a solution by…

Introduction On 7 September 2017, Belgium requested the opinion of the Court of Justice of the European Union (“CJEU”) on the compatibility with EU law of the Investment Court System (“ICS”) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (“CETA”). In his much anticipated opinion rendered today, Advocate General…

At the risk of mixing metaphors, if Achmea (Slovak Republic v Achmea Case C-284/16) killed intra-EU investor-state arbitration, and the European Commission’s Communication COM(2018)547/2 of 19 July 2018 knocked the head off its zombie corpse, then the Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the legal…

Key developments in international arbitration in 2018 were the focus of an end-of-the-year conference held on Wednesday, 19 December 2018, organized by CIArb YMG, the young members’ group of the Chartered Institute of Arbitrators, and Young ITA, the young members’ group of the Institute for Transnational Arbitration.  The event’s faculty members were Alexander G. Leventhal…

Very rarely would a single arbitration-related decision produce as significant an impact as the judgment of the Court of Justice of European Union (“EU” and “CJEU” respectively) in the Achmea case did during 2018. We should not doubt that Achmea will remain a cornerstone issue in the world of arbitration for a long period of…

On 17 December 2018, the Prime Minister of Hungary issued a decision entitled “Decision authorizing the conclusion of an Agreement to terminate bilateral agreements on encouragement and reciprocal protection of investments concluded between governments of certain Member States of the European Union” The rather succinct Decision confirms the Prime Minister’s approval of the commencement of…

While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…

Perhaps the one thing that is certain about the UK’s departure from the European Union is that it is uncertain. It is not certain that the UK and the EU will strike a deal on their future trading relationship after the UK leaves the EU on 29 March 2019; it is not known whether the…

The Court of Justice of the European Union’s (CJEU) judgment in Slovak Republic v. Achmea B.V. (Achmea) on arbitration under intra-EU BITs has been broadly discussed (on this blog, see e.g. here, here, here, here, here, here and here). Nine months after the Court’s ruling, some tribunals have had the opportunity to react. Food for…

Introduction Unquestionably, Spain captures the highest percentage of arbitration procedures for cuts applied to renewable energies, accumulating almost thirty ongoing lawsuits from foreign investors, with claims pending in the ICSID, in the SCC and in the ICC arbitrations. Spain as the respondent was successful in the first two arbitrations, but these were unique cases and…

Introduction The judgment of the Court of Justice of the European Union (CJEU) in Case C-284/16, Slovak Republic v. Achmea B.V. (Achmea) has attracted much comment in many fora, including the Kluwer Arbitration Blog (See e.g., articles authored by Florian Stefan, Clement Fouchard and Marc Krestin, and Vivek Kapoor). This is not surprising. The CJEU…