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international litigation blog

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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CJEU Rules on Immunity and Application of Brussels Ibis Regulation to International Organisations

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On 3 September 2020, the Court of Justice of the European Union (CJEU) delivered a judgment in a case which raised very interesting issues relating to the interaction and application of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) in summary proceedings involving international organisations, in particular when such international organisations invoke their immunity. The judgment follows the Opinion of Advocate General (AG) Henrik Saugmandsgaard Øe handed down earlier this year.READ MORE

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EU Plurilateral Agreement on Termination of Intra-EU BITs Enters Into Force – What consequences for Sunset Clauses?

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This article has jointly been co-authored by Isabelle Van Damme and Quentin Declève

With some delay, we wanted to discuss the latest developments on intra-EU BITs that took place during the last couple of months[1].

As we already discussed, instead of the EU Member States agreeing, on a bilateral basis, to amend or terminate their respective intra-EU BITs, most of the EU Member States have elected, as envisaged in their declarations of January 2019, to negotiate a single plurilateral agreement that will terminate all of the intra-EU BITs (the Plurilateral Agreement). That agreement received the political consensus of all EU Member States in October 2019. Twenty-three Member States (with the notable exceptions of Austria, Sweden, Finland, the United Kingdom[2] and Ireland)[3] signed the agreement on 5 May 2020[4] which entered into force on 29 August 2020[5].

Purposes of the Plurilateral Agreement

The use of a Plurilateral Agreement to terminate, amend, interpret or complement a series of existing agreements is not novel. This method – which relies on Article 30(3) of the Vienna Convention on the Law of Treaties (the VCLT) (“When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty“) – has been used in the past to, for example, modify bilateral tax treaties[6] and conclude the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the “Mauritius Convention on Transparency”). It is currently being contemplated within the UNCITRAL Working-Group III as a possible method for establishing the Multilateral Investment Court, which is the preferred option of the European Union for ISDS reform. Such a method is typically preferred because, instead of concluding a high number of separate agreements whereby State parties amend or terminate existing agreements between themselves on a bilateral basis, it allows for the conclusion of a single multilateral agreement whereby the parties agree to amend all their respective (bilateral) treaties having the same subject-matter at once.READ MORE

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Political Agreement to Make Cross-Border European Justice Faster and More Accessible in Civil and Commercial Matters

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On 30 June 2020, the European Parliament (the EP) and the Council of the European Union (the Council) reached an agreement to amend Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (the Taking of Evidence Regulation) and Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service of Documents Regulation) (together the Regulations).

The amendments to those Regulations aim to make cross-border European justice more accessible, faster, cheaper and more straightforward, in particular by increasing legal certainty and decreasing judicial delays and undue costs for citizens.READ MORE

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