The Opinion delivered on 19 September 2017 by Advocate General Wathelet in the case C-284/16 Achmea has already been widely commented on in the international arbitration community. The views are either critical or approving, but so far, they have mostly been focused on whether a particular legal point made by the Advocate General was right…

Adoption of the EU Council Directive on Tax Dispute Resolution Mechanisms in the European Union on 10 October 2016 is a milestone in international tax dispute resolution. The Directive offers a uniform mechanism to address tax treaty disputes among EU member states that meets the BEPS Action 14 minimum standard, and largely renders the arbitration option in…

The development of effective instruments for collective redress is a widely discussed topic among European politicians, consumer protectors, legal scholars and dispute resolution lawyers. The professional discourse was recently fuelled by the Volkswagen emission scandal (also referred to as “emissiongate” or “dieselgate”), which, at least in the US, was already subject to collective actions. Another…

I. Introduction On 19 September 2017 the Advocate General (AG) to the Court of Justice to the European Union (CJEU) Melchior Wathelet delivered his long-awaited Opinion in Case C-284/16 Slowakische Republik v Achmea BV. As already explained in another post, Bundesgerichtshof (“German Federal Court of Justice”) requested a preliminary ruling from the CJEU on the…

Reliance on the investor-state dispute resolution (ISDS) mechanism of the Energy Charter Treaty (ECT) is booming, with at least ten new cases registered in the past year alone. Notably, nine of these ten cases – and almost 60% of all publicly reported cases initiated to date – have been brought by an investor from a…

On May 30, 2017, Volterra Fietta and the University of Notre Dame hosted a debate of whether foreign investors can sue the United Kingdom for a hard Brexit. The recorded video is now available for viewing. Markus Burgstaller and I presented the case that foreign investors may have viable claims against the UK, while Jeremy…

My previous blog post on this topic dealt with two issues stemming from the juxtaposition between the current arbitration legal framework and necessary due process requirements which are specifically developed for antitrust damages proceedings: (1) the necessary regulation of complex arbitration specifically designed for antitrust damages matters, and (2) the need to address information asymmetry…

On his last day in office, former EU Trade Commissioner De Gucht sent the request for an opinion from the Court of Justice of the EU (CJEU) aiming to get a seal of approval from the CJEU that the EU-SING FTA and all future EU trade and investment treaties fall completely within the EU’s exclusive…

The long-standing dispute over the territory of Western Sahara has been the subject of a treaty, an advisory opinion of the International Court of Justice, an armed conflict, a United Nations-brokered ceasefire, and several General Assembly and Security Council resolutions. It has also recently come to the fore in several cases before the EU and…

The Member States of the European Union (“EU”) had a task that a very few has managed to complete: to implement the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 (“Damages Directive” or “Directive”) by 27 December 2017. According to the website of the EU Commission, only ten Member…

On 8 March 2017, the Romanian Parliament sent to the Romanian President for promulgation the Law allowing for the termination of the Bilateral Investment Treaties between Romania and other Member States of the European Union (“Intra-EU BITs”). This comes after Poland adopted a similar measure at the beginning of January 2017 and with the European…

The recent developments concerning the signature of the Comprehensive Economic Trade Agreement (CETA) between Canada and the EU have illustrated the paralysis and inability of the EU and its Member States to deliver economic prosperity and create jobs – which used to be one of the very reasons for establishing the EU and giving it…

Currently, around 190 bilateral investment treaties between EU Member States (“intra-EU BITs”) are still in force. Most of these intra EU-BITs were concluded in the 1990s. Prior to the two enlargement rounds in 2004 and 2007, relatively little attention was paid to the two existing intra-EU BITs. However, after 2004, the status of intra-EU BITs…

On the 7th of July 2016 the Court of Justice of the European Union (“Court” or “CJEU”) published the judgment in the Genentech case (Case C 567/14), awaited with great interest both by IP and competition practitioners, on one side, and by arbitration practitioners, on the other. IP and competition law practitioners’ interest lies in the…

European institutions have established the European Account Preservation Order procedure (“EAPO”) to facilitate the cross-border debt recovery through the attachment of bank accounts (see here the Regulation (EU) No. 655/2014, which will apply from 18 January 2017, except for Denmark and the United Kingdom). The EAPO in particular provides creditors with a measure alternative to national…

Juliane Kokott, Advocate General to the Court of Justice of the European Union (CJEU), gave the 2016 Mackenzie-Stuart Lecture on 26 February 2016 at the University of Cambridge, Faculty of Law. In her lecture, Ms. Kokott explored the conflicts between investor state dispute settlement (ISDS) and European Union (EU) law, as regards (1) conflicts between…

International investment law and investor-State dispute settlement (ISDS) are at a historic juncture as the United States and the European Union (EU) have started to address the content and contours of the investment chapter in the Transatlantic Trade and Investment Partnership (TTIP) in the latest negotiation round that took place in Brussels the last week…

The United States (“US”) and European Union (“EU”) demonstrate major differences in relation to consumer arbitration. In December 2015, the US Supreme Court rendered a judgment in Direct, Inc. v. Imburgia et al., an important precedent for consumer arbitration, which may make the law of these two jurisdictions diverge even further. This blog post discusses…

The last four months of 2015 have been significant for the design of future investor-state dispute settlement (ISDS), at least as far as political will goes for the European Union’s (EU) international investment policy. The European Commission’s May 2015 concept paper on ‘Investment in TTIP and beyond – the path for reform’ publicly expressed the…

Michael P. Daly is a Visiting Scholar at George Washington Law School and Legal Adviser to Charles N. Brower and Jawad Ahmad is a Legal Adviser at the Iran-US Claims Tribunal. The views expressed in this post are the authors’ alone.   On 2 December 2015 after more than three years of negotiations, the European…

A ruling of the Austrian Supreme Court, the Oberste Gerichtshof in Vienna, Austria, of earlier this year (see ruling of 18 February 2015, 2 Ob 22/14w) raises anew the much debated question of the type and intensity of supervisory court review of European Union (EU) competition law awards. Readers may recall that EU competition law…

At the CIARB’s London centenary conference earlier this month, the Honourable Chief Justice of Singapore, Sundaresh Menon, cautioned that: “we should remain mindful that there is no place for complacency or reason to assume that [the] international system of dispute resolution which so many have invested so much in, will continue on its recent trajectory…

Ever since the EU started to develop its investment policy, anti-ISDS groups started an unprecedented campaign. Indeed, on the very same day (7 July 2010) the European Commission published its first Communication on the EU’s investment policy, the anti-ISDS groups had a 100 page publication ready calling for the dismantling of international investment arbitration. Since…

 ‘By putting its head in the sand, the ostrich can see no problems, and if it can’t see any problems, they don’t exist”[1] To what extent can legal systems differ? Can these differences be legitimate enough to collapse a “conflictive” legal system? These two ambitious questions are difficult to be answered in one go, and…