On June 24, 2024, the European Union (“EU”) has introduced Council Regulation 2024/1745 which imposes the 14th package of sanctions against Russia, intensifying its response to Russia’s continued aggression in Ukraine. Among the key legal innovations in this package are Articles 11a and 11b, which provide EU operators with two distinct legal bases to seek…
On October 2, 2024, the EU General Court delivered a much-anticipated decision in the long‑running Micula saga, upholding the European Commission’s qualification of the award in Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania [I] as State aid. Coming after more than 10 years of litigation…
On March 11, 2024, an ICSID arbitral tribunal (Juan Fernández-Armesto (President), Wendy Miles, Alexis Mourre), rendered an award in Encavis AG and Others v. Italy. The controversy follows some other 14 disputes initiated by EU investors against the Italian State under the Energy Charter Treaty (“ECT”) (some of these discussed here) and falls into the…
On 21 July 2022, the European Council adopted Decision (CFSP) 2022/1271 amending Decision 2014/512/CFSP and Council Regulation (EU) 2022/1269 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine. One of the amendments introduced by the European Council appears to have assuaged the concerns of arbitral institutions…
The extent to which different dispute resolution fora are willing to pay deference to the Court of Justice of the EU’s (“CJEU”) seminal (and controversial) Achmea decision is being closely observed by investors and States alike. 1) Not to mention the European Commission, which has sought to make itself heard in numerous proceedings relating to intra-EU…
The investor-State dispute settlement (ISDS) mechanism provided by Art. 26 (2) (c) of the Energy Charter Treaty (ECT) is highly relevant to the protection of intra-EU investments.1)In 2018, about 45 per cent of all treaty-based intra-EU investment arbitrations were brought pursuant to the ECT. See UNCTAD, Fact Sheet on Intra-European Union Investor-State Arbitration Cases, IIA…
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…
Introduction It has by now become amply clear that nothing truly prepares the jurist for an analytical maze run of predicting the effects of Brexit. In some way, it reminds one of “Nebel des Krieges”, the “fog of war” faced by military decision makers once on the battlefield. The best you can hope for is…
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…
It is widely acknowledged that the departure of the UK from the EU, commonly referred to as Brexit, gives rise to multiple legal problems, some of which are bound to lead to actions. While there is a widespread coverage of public law related litigation, there is less knowledge of potential private actions, including those taking…
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…
Over the past two months, the judgment by the Court of Justice of the European Union (“CJEU”) in Slovak Republic v Achmea BV, hereinafter referred to as “Achmea”, has created much discussion among arbitration practitioners. Its reasoning and implications have already been addressed in several Kluwer Arbitration blog posts, available here, here and here. The…
The world after the Achmea v Slovakia decision focuses on the question about the future of ISDS in relation to intra-EU BITs. At the ASIL conference on the 6 April 2018, a representative of the EU observed the decision in the Achmea case as one that was perhaps a natural consequence of the intricacies of…
As it has been extensively discussed on this blog, in its landmark Achmea case the Court of Justice of the EU (“CJEU”) found the arbitration provision of the bilateral investment treaty (“BIT”) between the Netherlands and Slovakia to be incompatible with EU law. This decision potentially affects the effectiveness of the roughly 200 BITs concluded…
The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 was superseded by Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. The latter was subsequently repealed by Regulation (EU) 1215/2012 of the…
The CJEU judgement issued in the much-discussed (here and here) C-284/16 Slovak Republic vs. Achmea case has every chance of becoming a game changer in the field of the investment protection regime within the EU. Where does that leave the protection of investors within the EU? The message of the CJEU to those who welcomed…
In the midst of challenges to the very legitimacy of Investor-State Dispute Settlement (ISDS), the International Centre for Settlement of Investment Disputes (ICSID) celebrated its 50th anniversary and embarked on the fourth ICSID Rules amendment process in ICSID history. The previous amendment processes brought notable additions to the ICSID Rules, such as enhanced transparency in…
Many arbitration lawyers’ initial reaction to the CJEU’s Achmea judgment resembles the first three of the famous “five stages of grief” (denial, anger, bargaining, depression and acceptance). Some deny Achmea’s relevance under international law, others angrily dismiss it as unreasoned and politically motivated, while many attempts to “bargain” a way out for intra-EU arbitrations under…
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…
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…
