Quentin Decleve, Author at international litigation blog
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Author:Quentin Decleve

Nord Stream 2 Investor Initiates ECT Arbitration Proceedings Against European Union

On 26 September 2019, the Russian energy giant Gazprom issued, through its Switzerland-based subsidiary Nord Stream 2 AG, a notice for arbitration against the European Union alleging that recent amendments brought to Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (the Gas Directive) damaged its investments in the Nord Stream 2 pipeline and thus violated the Energy Charter Treaty 1994 (the ECT).

The issuing of this notice for arbitration appears to mark the first time that investment arbitration proceedings under the ECT are to take place against the European Union itself and serves as the latest saga in the area of inter-mixity of investment dispute settlement and EU law.READ MORE

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EFTA Surveillance Authority Gives Green Light to Arbitration-Set Energy Price

On 10 September 2019, the EFTA Surveillance Authority (the ESA)* handed down a decision where it ruled that energy prices, set in an arbitral award, which a private company had to pay to the Icelandic State-owned energy producer did not amount to State aid.

In the case at hand, a dispute had arisen between Elkem Iceland (Elkem), a ferrosilicon producer, and Landsvirkjun (Landsvirkjun), the Icelandic state-owned energy producer, concerning the price to be paid by Elkem to Landsvirkjun for energy supply.

Pursuant to the contract between Elkem and Landsvirkjun, the dispute was referred to arbitration.

In May 2019, the arbitral tribunal handed down its award in which the tribunal set the energy price to be paid by Elkem to Landsvirkjun.

However, concerned that such an arbitration-set energy price could amount to State aid, Iceland notified the arbitral award to the ESA for an assessment with State aid rules.READ MORE

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CJEU Rules on Jurisdiction in Private Damages Actions for Infringement of Competition Law in Absence of Contractual Link between Plaintiff and Participant to Cartel

On 29 July 2019, the Court of Justice of the European Union (the CJEU) handed down a judgment in which it held that a domestic court in an EU Member State has jurisdiction to rule on a follow-on competition damages claim even when no direct contractual link exists between the participant to a cartel and the victim.

The case concerned a civil action for damages initiated by Tibor-Trans Fuvarosó és Kereskedelmi Kft (Tibor-Trans), a freight transport company based in Hungary, against DAF Trucks NV (DAF), a trucks manufacturer headquartered in the Netherlands. The case was initiated before Hungarian courts by Tibor-Trans following the 2016 decision of the European Commission which found that, between 1997 and 2011, the international truck manufacturers, including DAF, had colluded on pricing and on the timing and the passing on of costs for the introduction of emission technologies (Case AT.39824 – Trucks).

Tibor-Trans brought its follow-on action for damages against DAF alleging that it had suffered financial harm as a result of the collusive arrangements between truck companies. Tibor-Trans said it had heavily invested in the purchase of new trucks between 2000 and 2008. In order to purchase those trucks, Tibor-Trans had secured financing from leasing companies which retained ownership of the vehicles until the expiry of the leasing agreements. The right of ownership only passed on to Tibor-Trans after performance of its obligations under the leasing agreements. Thus, although Tibor-Trans never purchased any DAF trucks, it claimed to be a direct victim of the anti-competitive infringement, considering that (i) the leasing companies only provided financing and completely passed on the overcharge to Tibor-Trans; and (ii) in Hungary, customers were only able to purchase trucks from independent dealers, and not directly from the original equipment manufacturers.

Tibor-Trans argued that Hungarian courts had jurisdiction to rule in that case. Tibor-Trans relied more particularly on Article 7(2) of Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on the jurisdiction and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) which provides that “[a] person domiciled in a Member State may be sued in another Member State: […] in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur“.READ MORE

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EU Commission Appeals EU General Court’s Judgment in Micula

On 27 August 2019, the European Commission filed an appeal before the Court of Justice of the European Union against the judgment of the EU General Court handed down on 18 June 2019 in the Micula case.

As we discussed previously, in its judgment of 18 June 2019, the EU General Court annulled the 2015 European Commission’s decision which found that an ICSID arbitral award handed down against Romania in favour of Swedish investors (the Miculas) amounted to State Aid.

The case is filed under the number C-638/19P (Commission v. European Food and Others). A summary of the main grounds of appeal should be published in the coming weeks in the EU’s Official Journal.

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46 States Sign Singapore Convention on Mediation

On 7 August 2019, 46 countries (including the People’s Republic of China and the United States) signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (also called the Singapore Convention on Mediation) (the Convention or the Singapore Convention). Without the Convention, an international mediated settlement agreement can only be enforced in the same way as any other contract (i.e., through judicial or arbitral proceedings for breach of contract).

Similar to the purpose of New York Convention on the enforcement of arbitral awards, the Convention therefore aims to facilitate the enforcement of “international” mediated settlement agreements.READ MORE

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Adoption of The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters

On 2 July 2019, The Hague Conference on Private International Law which includes the European Union, adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Convention).

The Convention’s objective is to facilitate the recognition and enforcement of court judgments across jurisdictions by creating a single global framework to that end. This should, in turn, enhance legal certainty and predictability, help to reduce transactional and litigation costs in cross-border civil and commercial matters and, ultimately, make multilateral trade and investment easier.

The complexity associated with the recognition and enforcement of foreign judgments has always been a significant obstacle to cross-border litigation and has therefore prompted businesses to opt for arbitration. In order to tackle this issue, the Convention is expected to simplify the foreign judgment enforcement process and to allow a more effective access to justice.READ MORE

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U.S. Supreme Court Rules on Threshold Issues of Arbitrability

Earlier this year, the U.S. Supreme Court (the Supreme Court or the Court) handed down two interesting decisions on the question of who, between a judge and an arbitrator, was properly positioned to answer the threshold question of whether a specific dispute is subject to arbitration and whether the parties are entitled to delegate that issue to arbitrators.READ MORE

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