Although parts of CETA have been provisionally applied since 21 September 2017, the parts not subject to provisional application – including the investment chapter (CETA’s Chapter Eight) which covers investment protection and dispute resolution – are still pending domestic ratification procedures in 10 EU Member States. In parallel, CETA’s framework for investment protection and dispute…

In a recent judgment dated 14 March 2024, European Commission v UK Case C-516/22, the Court of Justice of the European Union (“CJEU”) ruled that the UK failed to comply with its obligations under EU law (the “CJEU Judgment”). A casual reader may wonder how this could be. After all, the UK officially left the…

In October 2023, the European Commission published a Non-Paper of Annotations to Model Clauses for Negotiation or Re-negotiation of Member States’ Bilateral Investment Treaties (“BITs”) with Third Countries (“Model Clauses”) (“Non-Paper”). Non-papers are informal documents usually put forward in closed negotiations with EU institutions. The views in this Non-Paper do not necessarily communicate an official…

The European Commission has published the Trade and Investment pillar of the Advanced Framework Agreement between the European Union (EU) and Chile (the Agreement), as politically concluded. This seeks to modernise the EU-Chile Association Agreement. Undoubtedly, it represents a success for the EU, as it reinvigorates its trade and investment agenda, particularly in light of…

The 4th EFILA Annual Conference, held in London on 31 January 2019, offered a lively discussion about the future of the European investment policy among the EFILA’s distinguished guests. As expected, the focal topics were the ISDS reform, the EU proposal for Multilateral Investment Court (“MIC”), and the way forward. The MIC proposal was the…

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…

The first half of the year has been a rollercoaster when it comes to BITs and ISDS, in particular in Europe. Several developments at various levels can be distinguished with one common denominator: for better or for worse, the European Union (EU) and EU law have become one of the key drivers in shaping international…

There has been much comment about recent awards in Energy Charter Treaty (‘ECT’) arbitrations concerning investors’ claims against Spain and other EU states regarding renewable energy projects . The fortunes of investors and states have waxed and waned over the last few years, but overall it seemed that investors faced a considerable hurdle. In recent…

  The present analysis critically focuses on some aspects of the Opinion on the intra-EU BITs issued by AG Wathelet in the Achmea case (Case C-284/16) in September 2017. The Opinion has been extensively commented on in previously published posts on this blog. As such posts have noted, the AG’s position that intra-EU BITs are…

The European Commission (“EC”) has recently taken another step in its efforts to replace the traditional investor-state-dispute-settlement (“ISDS”) mechanism which underlies the approximately 1,400 bilateral investment agreements in force between EU Member States and third countries. On 13 September 2017, the EC issued, based on Article 218(3) of the Treaty on the Functioning of the…

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…

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…

Introduction The investment solar energy saga triggered by the regulatory reforms in the renewable energy undertaken by Spain and Italy is likely to be the new Black Swan in the investment arbitration world, reaching the importance and controversy of the Argentinian crisis of 2001. In addition, the question whether the ISDS system has learnt the…

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…

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…

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…

The Inaugural Conference of the European Federation for Investment Law and Arbitration (EFILA) took place on Friday, 23 January 2015, in the Senate House of the Queen Mary University of London. 160 participants ranging from academics, arbitrators, arbitration institutions, companies, lawyers to NGOs reviewed a full day long the EU’s first 5 years of European…

The controversial role of non-disputing parties has been the object of a significant amount of literature. While third party funding was a hot topic hitherto, the so-called amicus curia, and its evolving role, might be back in the spotlight. Since the first ICSID amicus case -the Bechtel case- until today, the rights, interests at stake…