European Union

EU Competition Law, EU Law, Europe, European Court of Justice, European Law, European Union, Micula, State Aid

(Curtis, Mallet-Prevost, Colt & Mosle)/ /Leave a comment

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…

Africa, European Union, Investment, Investment agreements, Sustainability

, (Morais Leitão)/ /Leave a comment

Early this year, the European Union (“EU”) finalized the required internal procedures for the entry into force of the Sustainable Investment Facilitation Agreement concluded between the European Union and the Republic of Angola on 18 November 2022 (“SIFA” or the “Agreement”). This landmark agreement, the EU’s first “sustainable investment facilitation agreement,” could set a precedent…

Climate change, ECT Withdrawal, Energy, Energy Charter Treaty, Energy Dispute, European Union

(Macchi di Cellere Gangemi)/ /1 Comment

The present post focuses on the latest European development on the modernization of the Energy Charter Treaty (“ECT”). It will do so by putting it in a broader geopolitical context and linking it to the fossil fuel-related investments carve-out, not originally envisaged in the EU proposal. It will then analyse carve-outs in investment treaties in…

Eastern Europe, ECT Modernisation, ECT Withdrawal, Energy Charter Treaty, EU Withdrawal Act, European Union, Hungary, Intra-EU Investment Arbitration

(ESSEC Business School, Paris; Paragon Advocacy) and (Permanent Representation of Hungary to the European Union)/ /Leave a comment

On 26 June 2024, 26 of the 27 EU Member States, along with the EU, signed a Declaration on the Legal Consequences of the Judgment of the Court of Justice of the EU (“CJEU”) in Komstroy and a Common Understanding on the Non-applicability of Article 26 of the Energy Charter Treaty as a Basis for…

Denial of Benefits, Energy Charter Treaty, EU Law, European Commission, European Union, Investment Arbitration

, (Pinsent Masons)/ /Leave a comment

The European Commission’s “Proposal for a Council Decision on the partial suspension of the application of the Energy Charter Treaty between the Union and any legal entity that is owned or controlled by citizens or nationals of the Russian Federation or of the Republic of Belarus, and any Investment within the meaning of the Energy…

Canada, CETA, Europe, European Commission, European Union, Expedited arbitration, Expedited Proceedings, Expropriation, Fair and Equitable Treatment, FET, International Investment Arbitration, International Investment Law, Investment, Investment agreements, Investment Arbitration, Investment Disputes, Investment law, Investment protection, Investment Treaties, Investor-State arbitration, ISDS

(Clifford Chance)/ /Leave a comment

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…

European Union, Ireland, Third party funding

(Herbert Smith Freehills )/ /Leave a comment
Herbert Smith Freehills

Several recent developments across the EU portend increased availability of third-party funding by parties to EU-seated arbitral proceedings, albeit within a context of regulation of that funding beyond the self-regulatory approach of funder codes of conduct or the rules of funder organizations.   Legalisation of Third-Party Funding of International Arbitration in Ireland Ireland, the only…

Arbitral Tribunal, Artificial Intelligence, EU Law, European Union

(WilmerHale & Queen Mary University of London)/ /Leave a comment

There has been a lot of talk about artificial intelligence (“AI”) in international arbitration in recent years.  I vividly remember when I gave the keynote speech on “International Arbitration 3.0 – How Artificial Intelligence Will Change Dispute Resolution” at the Vienna Arbitration Days 2018.  At the time, people were quite skeptical about the topic, but…

European Commission, European Union, Investment protection, Investor-State arbitration, Model Clauses

, , (Herbert Smith Freehills LLP)/ /Leave a comment

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…

ECT Modernisation, ECT Withdrawal, European Union, Treaty Amendment

(University of Vienna)/ /Leave a comment

Several EU member states have abandoned the modernization of the ECT and expressed their intention to withdraw from the ECT (see here). In February 2023, a Commission non-paper was leaked, which describes a coordinated withdrawal of the EU and its member states from the ECT as the ‘the most adequate option’. Such a coordinated withdrawal…

Climate change, ECT Modernisation, ECT Withdrawal, European Union, ISDS Reform

(University of Cambridge)/ /Leave a comment

By the end of April 2023, observers of the ECT modernisation process may have felt as if they were waiting for Godot. The vote on the outcome of the ECT modernisation process, scheduled to take place at an ad hoc meeting of Energy Charter Conference at the end of April 2023, was postponed for the…

Chile, European Commission, European Union, Investment agreements, ISDS Reform

(King’s College London)/ /Leave a comment

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…

Achmea, ECT Modernisation, European Court of Justice, European Union, Fair and Equitable Treatment, fossil fuels phase out, Investor-State arbitration, ISDS Reform, right to regulate, Treaty Making

(Seven Summits Arbitration), (University of Copenhagen), and (Hasselt University )/ /Leave a comment

The Centre for International Law and Governance, University of Copenhagen, in cooperation with Hasselt University and Seven Summits Arbitration, recently hosted an expert roundtable on “The Energy Charter Treaty (ECT) at a Crossroads”. The discussion, moderated by the three authors of this post, focused on the relationship between investor-state dispute settlement (ISDS), investment protection, modernization…

Achmea, Enforcement, EU Law, Europe, European Law, European Union, Intra-EU BITs, Intra-EU Investment Arbitration, Intra-EU ISDS

(Lenz & Staehelin)/ /Leave a comment

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…

2021 in Review, Achmea, ECJ, Energy Charter Treaty, EU Law, Europe, European Union, Micula, Multilateral Investment Court

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Looking back on 2021, one realizes that for those interested in the intersection between EU law and investment arbitration, it was a busy year. As part of our customary “year-in-review” series, this post offers a brief overview of the key investment arbitration-related developments in Europe and their coverage on the Blog. I have grouped these…

China, EU Law, European Union, Investment, Investment agreements, Investment law, Investment protection, Investment Treaties

, , (Freshfields Bruckhaus Deringer LLP)/ /Leave a comment

The EU-China Comprehensive Agreement on Investment (CAI), agreed in principle in December 2020, was announced with great fanfare. Forged after seven years of negotiations between the world’s current largest trading block (the EU) and the country expected to have the world’s largest economy by the end of this decade (China), the CAI was set to…

CJEU, Energy Charter Treaty, European Law, European Union, Intra-EU ISDS, Investment Arbitration, Investment Disputes

, (International Investment Law Centre Cologne)/ /Leave a comment

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…

CJEU, ECJ, Energy Charter Treaty, European Union, Intra-EU Investment Arbitration, Intra-EU ISDS, Investment

(NL-Investmentconsulting)/ /7 Comments

No doubt, the Energy Charter Treaty (ECT) has become the hottest topic in the investment treaty arbitration world. Not only are EU Member States the most frequent respondent in ECT disputes – for example, the Netherlands has recently received its first ECT claim – but the ECT itself is currently in the middle of a…

Achmea, Arbitration Institutions and Rules, ECT Modernisation, Energy Charter Treaty, Environment, European Union, International arbitration, Investment Arbitration

(Ministry of Climate and Environment, Republic of Poland)/ /Leave a comment

Following a highly-publicized diplomatic battle among the EU Member States (MS), the EU revealed in mid-February its proposal to amend the ECT’s definition of the “Economic Activity in the Energy Sector” (EAES). The announcement allayed fears of the intra-EU discussions on the matter falling apart. Insofar as it sets forth a vision for amendments that…

Anti-suit injunction, Brexit, Brussels Regulation, CJEU, European Union

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While the United Kingdom (“UK”) was a member of the European Union (“EU”), the power of the English courts to grant anti-suit injunctions was considerably constrained by EU law. Now that the UK has left the EU, it is worth asking the question: are anti-suit injunctions back on the menu? This blog post provides a…

Arbitration, Brexit, EU-UK dispute settlement, European Union, Investment Arbitration, State-State Dispute Settlement, State-to-state arbitration

, (Linklaters LLP), (Linklaters LLP; Erasmus University), and (Linklaters)/ /1 Comment

The EU-UK Trade and Cooperation Agreement (“TCA”), concluded on 24 December 2020 and provisionally applicable since the end of the transition period on 31 December 2020, regulates the relationship of the EU and the UK after Brexit. It forms a basis for an evolving relationship between the Parties and may further change, depending on scrutiny…

European Union, Intra-EU BITs, Intra-EU ISDS, Investment, Investment Arbitration, Investment protection, ISDS, ISDS Reform, Multilateral Investment Court

(Freshfields Bruckhaus Deringer LLP) and , (Freshfields Bruckhaus Deringer)/ /Leave a comment

Much has been written – on this page and elsewhere – about the future viability of investor-state arbitration based on intra-EU BITs in the aftermath of the CJEU’s Achmea decision. In the authors’ view, the May 2020 Termination Agreement concluded between 23 of the 27 EU Member States with the intention to terminate existing intra-EU…

Arbitration, Brexit, European Union, UK

(Schoenherr)/ /Leave a comment
Schoenherr

In early September 2020, the United Kingdom (‘UK’) Secretary of State for Northern Ireland, Brandon Lewis, conceded in no uncertain terms that the UK Internal Market Bill would violate public international law, albeit only in “a very specific and limited way“. This immediately caused controversy, to put it mildly. The EU Commission did not take…

Arbitration, ECT Modernisation, Energy Charter Treaty, EU Law, European Union, Investment Arbitration, Reform

(University of Bedfordshire)/ /Leave a comment

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host…