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international litigation blog

Report of Third EU Stakeholder Meeting on ISDS Reform

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Yesterday (9 October 2018), the European Commission held its third stakeholder meeting on the reform of investor-State dispute resolution (ISDS) mechanisms (see here and here for reports of the two previous meetings).

The goal of this meeting was (prior to the third round of discussions on the ISDS reform which will be held in Vienna (29 October – 2 November 2018) within UNICTRAL Working Group III (Working Group III)) to share with civil society the key aspects of those negotiations.

As was the case in the two previous meetings, Mr Colin Brown (Deputy Head, Dispute Settlement and Legal aspect of Trade policy Unit) gave an overview of the current state of play, and responded to questions from attendees.READ MORE

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Vattenfall v. Germany: Tribunal Subtly Avoids Applying Achmea Judgment and Finds that Article 26(6) ECT Does Not Apply to Jurisdiction Issues

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On 31 August 2018, the ICSID tribunal in Vattenfall v. Germany issued a decision addressing the consequences, for this case, of the Achmea judgment handed down by the Court of Justice of the European Union (the CJEU) on 6 March 2018 (see previous analysis of the Achmea judgment here and here).

The case at hand is a well-known investment dispute whereby a Swedish investor (Vattenfall) initiated arbitral proceedings against Germany seeking compensation for damages incurred following Germany’s decision to shut down all the nuclear power plants on its territory and to replace them with green energy alternatives. Vattenfall, which owned such nuclear power plants, argued that such decision amounted to an expropriation which violated the Energy Charter Treaty (the ECT – a multilateral agreement to which both Germany and Sweden were parties to, together with all other EU Member States, the European Union and several third countries (including Japan, and Central Asian countries)).

In the Achmea judgment, the CJEU ruled that an intra-EU investment arbitration case between two EU parties, a Dutch investor and Slovakia, violated EU law. However, in stark difference with the Vattenfall case (where the underlying basis for arbitration was the ECT’s investor-State dispute resolution clause provided for in Article 26), the basis for the jurisdiction of the arbitral tribunal in Achmea was the Czechoslovakia-Netherlands bilateral investment treaty (BIT).

Based on that judgment, and since the Vattenfall case also involved EU parties (i.e., a Swedish investor against an EU Member State), Germany argued that the arbitral tribunal in Vattenfall lacked jurisdiction since the findings of the CJEU in Achmea were “not limited to BITs between EU Member States, but must also be applied to multilateral agreement to which EU Member States are party, such as the ECT“.READ MORE

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English Court of Appeal Stays Miculas’ Enforcement Proceedings

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On 27 July 2018 the English Court of Appeal (the Court of Appeal) confirmed the stay of UK enforcement proceedings of the 2013 arbitral award handed down in favour of the Micula brothers (the Miculas). Interestingly, the Court of Appeal’s ruling carefully navigates through the thorny interrelationship of the ICSID Convention and EU law.READ MORE

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Brussels Court of Appeal Rules FIFA and UEFA Arbitration Clauses Inapplicable

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On 29 August 2018, in a case involving FIFA (the International Football Association) and UEFA (the European Football Association), the Brussels Court of Appeal (the Court of Appeal), issued an important decision refusing to refer the dispute to arbitration despite the existence of arbitration clauses providing for the jurisdiction of the Court of Arbitration for Sport (CAS).READ MORE

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After Token Rush: International Litigation and Initial Coin Offerings (ICO) – Part 2

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This article considers some of the international litigation questions that arise out of Initial Coin Offering (ICO).

In the first part of this article, we discussed in particular issues relating to jurisdiction. We now continue this discussion while also considering questions relating to applicable laws.

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Issues of jurisdiction are made somewhat more complex by the circumstance that many ICO’s general terms and conditions (TnC) contain clauses that may directly or indirectly affect the jurisdiction of courts. In this respect, the most obviously relevant type of agreement are forum selection clauses; in the case of the Tezos ICO, for instance, the TnC specified that “(a)ny dispute arising out of or in connection with the creation of the [tokens] and the development and execution of the Tezos Network shall be exclusively and finally settled by the ordinary courts of Zug, Switzerland“. As noted by the District Judge denying the motion to dismiss, this is best understood not as a “clickwrap agreement“, but as a “browsestrap” one: when subscribing, investors were not asked to check a box indicating consent to the TnC, but simply enabled to retrieve the TnC on the website advertising the ICO. In order to determine whether the forum selection clause is binding, hence, a case-by-case assessment is necessary, evaluating whether – given the circumstances of the case, such as the structure of the website – it is reasonable to expect that users in general accessed the TnC, and whether the claimant(s) in particular had any demonstrable knowledge of the contents of the TnC.READ MORE

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After Token Rush: International Litigation and Initial Coin Offerings (ICO) – Part 1

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Between the end of 2016 and the beginning of 2017, many things that we thought were impossible happened. Among them was the meteoric rise of Initial Coin Offerings (ICO), an unprecedented development in the fields of venture capital, blockchain technologies and corporate finance law. This post considers some of the international litigation questions that arise out of the phenomenon, especially in light of the recent proliferation of ICO-related court cases.READ MORE

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International Litigation Blog Expands to New Contributors and Opens Twitter Account

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Dear Readers,

As summer is fading away and people get back to business after their holiday period, I am happy to announce two significant developments to the International Litigation Blog.

First, I am delighted to welcome five outstanding new contributors with significant expertise in the field of transnational litigation and arbitration:

Isabelle Van Damme (counsel at Van Bael & Bellis and former référendaire at the Court of Justice of the European Union);

Pietro Ortolani (Radboud University, Nijmegen, and former researcher in international law and arbitration at the Max Planck Institute, Luxembourg);

Holger Hestermeyer (King’s College, London);

Julian Arato (Brooklyn Law School); and

Ricardo Ampuero Llerena (President of the Peruvian Commission on Investments).

These five contributors will be invited on a periodic basis to share with us some thoughts and developments on topics of their choice relating to international litigation and arbitration. Given their impressive knowledge and experience in those fields, I am confident that we will all greatly benefit from their insights and views. For more information about them, I invite you to read their full biographies in the “About The Authors” section above.

To give you a taste, Pietro will open the floor tomorrow with a contribution covering the international litigation aspects arising in the context of blockchain and Initial Coin Offering.

Second, I am very happy to announce the launch of a Twitter account which will allow the blog to gain visibility. The goal of this Twitter account is to facilitate the sharing of blog posts and other significant news in the field of international litigation. So, don’t hesitate to follow us there too.

Happy reading!

Quentin

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