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Achmea: Potential Consequences for CETA, the Multilateral Investment Court, Brexit and other EU trade and investment agreements

This article has jointly been co-authored with Isabelle Van Damme

On 6 March 2018, the Court of Justice of the European Union (the CJEU) delivered its long-awaited judgment in Case C-284/16 Achmea. This case raised the issue of whether an arbitration clause in a bilateral investment treaty (BIT) concluded between two EU Member States (intra-EU BIT) is compatible with European Union (EU) law and, in particular, with the autonomy of the EU legal order.

As discussed in two previous posts (here and here), Advocate General Wathelet delivered, on 19 September 2017, an Opinion in strong support of international arbitration. He found that an arbitration clause such as that at issue in Achmea was not incompatible with EU law. The CJEU disagrees.

In this article, we summarise the key findings of the CJEU’s judgment and analyse its potential consequences for the EU-Canada Comprehensive Economic and Trade Agreement (CETA), for the proposed Multilateral Investment Court and for future EU trade and investment agreements (including the future agreement between the European Union and the United Kingdom).READ MORE


Doctrinal Debate: Enforcement of Annulled Arbitral Awards – a U.S. perspective

As mentioned in a previous post, I wanted to discuss with you some recent U.S. court decisions which have delineated the standards followed by local courts in enforcing annulled arbitral awards.

As is well-known, once an arbitral award is rendered, parties to a dispute often race to the courts: The winning party seeks the enforcement of the award while the losing party seeks its annulment.

Of course, if the losing party is successful in obtaining the annulment of an arbitral award, this situation can seriously complicate and even jeopardize the enforcement proceedings initiated by the winning party. Indeed, the New York Convention provides that a court may refuse to enforce a foreign award if “a competent authority” has set the award aside or has suspended it.

Notably, the wording of the Convention, and in particular the use of the word “may” (instead of “shall”), has given rise to discussions on whether a court remains entitled to enforce an award that has been set aside. This issue is particularly delicate as it often involves policy considerations.

In the United States, several court decisions have recently reassessed the standards to be applied by the courts when enforcing annulled awards.READ MORE


…And Now France To Establish International English-Speaking Court

As we discussed before, Brexit means that the United Kingdom will soon leave the European Union and, consequently, judgments rendered by U.K. courts will no longer enjoy automatic recognition and enforcement in the remaining EU member States. As a result, a creditor of a U.K. judgment will find it more difficult and costly to enforce this judgment in other EU jurisdictions.

In order for litigants to overcome this difficulty, several jurisdictions in the European Union (including Belgium, the Netherlands, Germany and Ireland) have, over the last couple of months announced plans to establish English-speaking courts which would have jurisdiction to hear international commercial disputes.

The common objective behind all those initiatives is clearly to prepare for Brexit by capturing some of the international litigation business currently located in London.

This trend continues as France just recently announced its intention to open an English-speaking chamber within the Paris Court of Appeal. As is the case in the other jurisdictions that have announced similar plans, this chamber will have jurisdiction to hear disputes with a foreign characteristics (for instance in which at least one of the parties is a foreign entity or if foreign law is applicable). Interestingly, it will also have jurisdiction to hear appeals against international arbitral awards and actions regarding the enforcement of international arbitral awards.READ MORE


Paris Court of Appeal Confirms Extensive Role of International Public Policy in Arbitral Awards Annulment Proceedings

On 16 January 2018, the Paris Court of Appeal (the Court of Appeal) rendered an interesting decision in which it applied the international public policy doctrine to annul an ICC arbitral award rendered in 2015 in a dispute between a Russian company (MK Group) and Ukrainian companies (including Onix). The case concerned the litigious transfer of 60% of the shares of Dao Lao (Dao Lao), a Laotian company active in gold mining in Laos.READ MORE


The Netherlands Soon to Establish English-Speaking Commercial Court

A couple of months ago, the well-known weekly magazine The Economist” highlighted a global trend that sees jurisdictions from around the world competing to attract legal disputes before their courts. To this end, some countries (including, as previously discussed, Belgium) have (or will soon) set up special commercial courts that will conduct cases in English.

The Dutch Parliament is expected to shortly follow the same trend when it debates a new court reform bill (the Bill). The Bill aims at establishing an English-speaking court system which will have jurisdiction to hear international commercial disputes.

In anticipation of those debates in the Dutch Parliament, I wanted to provide a brief update and outline the main characteristics of this new court system:READ MORE


CJEU Clarifies Consumer Jurisdictional Privilege in Personal and Assigned Claims for Breach of Data Rights

On 25 January 2018, the Court of Justice of the European Union (the CJEU) rendered its decision in Maximilian Schrems v. Facebook Ireland Limited.

The CJEU followed the opinion of Advocate General Bobek (the Advocate General) – that we previously discussed – and clarified the extent of the consumer jurisdictional privilege.

As we already discussed, Maximilian Schrems is a well-known Austrian activist in the field of technology and electronic privacy. Previously, Mr. Schrems had successfully challenged the transfer of data from the EU to the U.S. through the Safe Harbour regime.

In the present case, Mr Schrems sued Facebook Ireland Limited (Facebook), the European subsidiary of Facebook Inc., for alleged violations of his privacy and data protection rights, as well as those of seven other Facebook users who had assigned their claims to him. These seven co-claimants were domiciled in the EU as well as in India.

Mr Schrems initiated proceedings in the Austrian courts, relying on the consumer jurisdictional privilege provided for in Article 16(1) of the now repealed Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). This provision allows consumers (i.e., non-commercial parties) to sue the other party to a contract in the courts of the EU Member State in which the consumer is domiciled. Article 18(1) of the currently applicable Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) contains similar terms. Article 15(1) of the Brussels I Regulation (reproduced in Article 17(1) of the Brussels Ibis Regulation) limits this jurisdictional privilege to “matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession“.READ MORE


U.K. Supreme Court Considers Jurisdictional Tests for Service of Claims Outside Jurisdiction

On 19 December 2017, the U.K. Supreme Court (the Supreme Court) rendered a judgment providing interesting food for thought with respect to jurisdictional tests for service of claims outside the U.K.

The case was taken by the widow (Lady Brownlie) of Sir Ian Brownlie QC, a distinguished English scholar and practitioner of international law, who died (together with his daughter) in a car accident while on holiday in Cairo in January 2010. Lady Brownlie and two of their grandchildren were also injured in the accident.

Lady Brownlie brought a series of claims, before U.K. courts, under contract law and in tort (for her own injuries and for her husband’s death) against Four Seasons Holdings Inc. (FS Holdings), the Canadian-based owner of the Egyptian hotel to whom she had booked the excursion.READ MORE