Quentin Decleve, Author at international litigation blog

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Author:Quentin Decleve

December 7, 2022 In Uncategorized By Quentin Decleve

Goodbye…

Dear Readers,

Today marks the end of a great adventure. I launched the International Litigation Blog in November 2016. After more than 160 blogposts covering all sorts of issues relating to international litigation and arbitration, I have decided to stop the blog.

Writing for this blog has always been a great source of satisfaction. However, I am heading towards new professional challenges which will claim my full attention in the coming months.

I want to express my thanks to all the readers who showed an interest in the blog over the last 6 years and I sincerely hope that you enjoyed reading the blogposts as much as I enjoyed writing them.

The blog will remain online for another few months so you will still have a chance to consult past articles.

Best regards,

Quentin

June 16, 2022 In Energy Charter Treaty, Intra-EU BIT, Investment Law By Quentin Decleve

CJEU finds Belgium’s request for an Opinion on the compatibility with EU law of the draft modernized ECT inadmissible

The Court of Justice of the European Union (the CJEU) delivered today (16 June 2022), its Opinion on the issue put forward by the Belgian government on whether the draft modernized Energy Charter Treaty (the ECT) (and the investor-State arbitration (ISDS) clause contained in Article 26 of the ECT) was compatible with EU law (check our former article).

The CJEU found this request for an Opinion to be inadmissible.

According to the CJEU, it “does not have sufficient information on the content and, more particularly, on the scope of Article 26 which will appear in the modernised ECT, even though that scope is the subject of the present request for an Opinion“.

The CJEU also reminded that it has already ruled on the question of the compatibility of Article 26 of the ECT with the EU Treaties and that it is clear from the judgment in Komstroy that “compliance with the principle of autonomy of EU law, enshrined in Article 344 TFEU, requires Article 26(2)(c) of the ECT to be interpreted as meaning that it is not applicable to disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State“.

The Opinion of the CJEU is available here.

February 16, 2022 In Annulment of arbitral awards By Quentin Decleve

EU General Court Reaffirms Obligation of National Courts to Review Arbitral Awards’ Compliance with EU Competition Law

On 2 February 2022, the EU General Court reaffirmed that EU national domestic courts were bound to annul arbitral awards that did not comply with European Union competition law (Case T-616/18, Polskie Górnictwo Naftowe i Gazownictwo v Commission). This judgment of the EU General Court is a confirmation of the well-established case-law of the Court of Justice of the European Union (the CJEU) in Eco Swiss (Case C-126/97, Eco Swiss).READ MORE

December 23, 2021 In Uncategorized By Quentin Decleve

CJEU Confirms CILFIT Criteria and Clarifies Case Law on Preliminary References

On 6 October 2021, the Grand Chamber of the Court of Justice of the European Union (the CJEU) delivered a judgment clarifying the obligation of national courts to refer questions on the interpretation of EU law to the CJEU (Case C-561/19, Consorzio Italian Management and Catania Multiservizi SpA v. Rete Ferroviaria Italiana SpA).READ MORE

September 28, 2021 In Energy Charter Treaty, Intra-EU BIT, Investment Law By Quentin Decleve

Can EU Member States Replicate Plurilateral Agreement on Intra-EU BITs to Implement Komstroy Judgment?

On 2 September 2021, the Court of Justice of the European Union (the CJEU) handed down a judgment in Republic of Moldova v. Komstroy LLC, in which it ruled that intra-EU investment arbitration under the Energy Charter Treaty (ECT) was incompatible with EU law.

As a consequence of that judgment, the European Union and the EU Member States will soon need to take appropriate actions to implement and manage the legal consequences of that decision.

In this short blog post, I share some of my thoughts that I developed when preparing for my presentation at the 2020 EFILA Conference and where I specifically discussed the possibility for EU Member States to exclude intra-EU ISDS arbitral proceedings from the scope of the ECT through the adoption of a plurilateral inter se agreement (the Plurilateral Agreement) similar to the one they adopted to terminate their respective intra-EU BITs. READ MORE

August 25, 2021 In Recognition and enforcement of arbitral awards By Quentin Decleve

Brussels Court of Appeal Upholds Attachment Order against Kazakhstan

On 29 June 2021, the Brussels Court of Appeal (the Court of Appeal) handed down a judgment in which it upheld a protective attachment order over more than USD 500 million worth of assets, owned by Kazakhstan, and held with the Brussels subsidiary of the Bank of New York Mellon (the BNYM).

Background

The proceedings before the Belgian courts result from the efforts of two Moldovan investors (Anatolie and Gabriel Stati (the Investors)) who seek to enforce an arbitral award handed down in their favour in 2013. The arbitral tribunal (chaired by Karl-Heinz Böckstiegel) had found Kazakhstan liable for a harassment campaign against the Investors which ultimately resulted in a violation of the Energy Charter Treaty provisions on Fair and Equitable Treatment. As a result, the arbitral tribunal had ordered Kazakhstan to pay USD 508 million to the Investors as compensation for the damage suffered.

In the absence of voluntary payment from Kazakhstan, the Investors sought a protective attachment order from the Brussels Court of First Instance in 2017 enabling them to freeze assets owned by Kazakhstan held with BNYM pending the outcome of the proceeding leading to the recognition and enforcement of their arbitral award in Belgium. The protective attachment order was obtained in ex parte proceedings (i.e., without notice to Kazakhstan). However, upon notice of the attachment order, Kazakhstan lodged a third-party challenging the validity of the protective order. After the Brussels Court of First Instance dismissed the third-party opposition, Kazakhstan appealed that decision before the Court of Appeal.READ MORE

July 22, 2021 In Uncategorized By Quentin Decleve

Brussels Court Issues Judgment against Belgian Government in Climate Change Litigation

On 17 June 2021, the French-speaking Brussels Court of First Instance (the Court) handed down its judgment in the so-called “Klimaatzaak” case, in which it found that the federal government as well as the governments of the three Belgian regional entities (i.e., Flanders, Wallonia and Brussels-Region) breached Article 1382 of the Belgian Civil Code on tort liability and Articles 2 and 8 of the European Convention on Human Rights (the ECHR) by failing to take the necessary measures to limit the adverse effects of climate change on the country’s population.

On 27 April 2015, the environmental non-profit association “Klimaatzaak” representing 58,000 Belgian citizens (the claimants) filed a lawsuit against the Belgian federal government as well as against the governments of the three regional entities, alleging that these authorities breached their general duty of care and the citizen’s human rights by failing to implement their commitments in terms of fighting climate change.