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Investment Protections Implications of Brexit and of EU-UK Trade and Cooperation Agreement

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This article has been co-authored by Quentin Declève together with Nicholas Lawn (Partner at Van Bael & Bellis) and Adriana Pérez-Gil (Associate at Van Bael & Bellis)

On 24 December 2020, the European Union (the EU) and the United Kingdom (the UK) agreed a Trade and Cooperation Agreement (the TCA) intended to settle their future relationship, with provisional application from 1 January 2021.

Following the UK’s exit from the EU on 31 January 2020 and the end of the transition period under the Withdrawal Agreement, the UK is no longer a member of the EU single market or the EU customs union. Whilst the TCA does not change this fact, it sets out separate terms for the new on-going relationship between the EU and the UK.

Title II of Part Two, Heading One (Trade) of the TCA includes provisions relating to “services and investment” (“SERVIN“). Yet, as explained below, the provisions are minimal and are limited to dealing with investment liberalisation, establishment, operation, market access and non-discriminatory treatment. In respect of investment protection, the TCA is more notable for what is out than what is in.READ MORE

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European Parliament Adopts Collective Redress Directive For Consumers

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On 24 November 2020, the European Parliament (the EP) adopted a Directive on representative actions for the protection of the collective interests of consumers (the Collective Redress Directive or CRD).

The proposed CRD was initially published by the European Commission (the Commission) in April 2018. The proposal was then examined by the EP and by the Council of the European Union (the Council), which entered into interinstitutional negotiations in January 2020. The EP and the Council reached a political agreement on the final text of the Directive on 22 June 2020. On 4 November 2020, the Council adopted its position at first reading, which has now been formally approved by the EP and has since also been published in the Official Journal (Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC, O.J. (2020) L 409/1).

The CRD establishes an EU-wide “class action” or “representative action”. It covers infringements of EU law which are harmful to the collective interests of natural persons in their capacity as consumers, regardless of whether those consumers are referred to in the relevant instruments as “consumers”, “travellers”, “users”, “customers”, “retail investors”, “data subjects” or otherwise. Accordingly, representative actions may be brought not only for infringements of general EU consumer law, but also of EU rules pertaining to the protection of personal data, geo-blocking, financial services, energy and telecommunications.READ MORE

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CJEU’s Advocate General Hints at Invalidity of Intra-EU ISDS Disputes Based on Energy Charter Treaty

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I wanted to publish a short note on an Opinion handed down by Advocate General Saugmandsgaard Øe in which he provides his own personal answer to one of the most highly debatable questions among EU and arbitration practitioners. Namely, the impact of the Achmea judgment on intra-EU Investor-State disputes (ISDS) conducted pursuant to the Energy Charter Treaty (ECT).READ MORE

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U.K Supreme Court Clarifies Rules To Determine Arbitration Agreements’ Governing Law

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On 9 October 2020, the U.K. Supreme Court (the Supreme Court) handed down a judgment in which it ruled on the law governing an arbitration agreement.

Building on previous decisions handed down by English courts (in particular the decision of the English Court of Appeal in Sulamérica Cia Nacional de Seguros SA v. Enesa Engenharia SA), the judgment of the Supreme Court provides greater clarity in respect of the test to be applied to determine the governing law of an arbitration agreement, especially when the law applicable to the underlying contract containing that arbitration agreement differs from the law of the seat of arbitration.READ MORE

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U.S. Supreme Court Rules on Whether Domestic Doctrines Bind Non-Signatories to Int’l Arbitration Agreement Under New York Convention

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By Erico Bomfim de Carvalho – Partner at Advocacia Velloso in Brasília (Brazil).

On 1 June 2020, the U.S. Supreme Court (the Supreme Court) issued its unanimous decision in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC.

The issue of the case can be summarized as follows: whether the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), conflicts with domestic doctrines (such as equitable estoppel) that permit the enforcement of arbitration agreements by non-signatories.

The Supreme Court answered in the negative: the New York Convention does not conflict with such domestic doctrines. Therefore, under the New York Convention, individuals or entities that have not signed an arbitration agreement (i.e., non-signatories) are allowed to compel arbitration under the domestic doctrine of equitable estoppel.

The decision is important in many aspects. Most notably, the decision reaffirms the New York Convention’s pro-arbitration policy and shines light on the symbiotic interaction between Chapters 1 and 2 of the Federal Arbitration Act (the FAA).READ MORE

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Singapore Convention on Mediation Enters Into Force

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On 12 September 2020, the Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation – the Convention) entered into force.

Pursuant to its Article 14, the Convention entered into force six months after the third signatory State (i.e., Qatar) completed its ratification process (i.e., on 12 March 2020). Thus far, the Convention has been signed by 53 signatories and has been ratified by 6 countries (Singapore, Fiji, Qatar, Saudi Arabia, Belarus and Ecuador).READ MORE

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