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English High Court Rules on Anti-Suit Injunctions and Disregards AG Wathelet’s Opinion in Gazprom

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On 6 June 2018, the English High Court (the Court) ruled in Nori Holding Limited et al. that a European court was not entitled to grant anti-suit injunctions in order to prevent parallel judicial proceedings taking place in another EU Member State. The Court’s judgment is in line with the West Tankers ruling handed down by the Court of Justice of the European Union (the CJEU) in 2009.READ MORE

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Does Achmea Invalidates All Intra-EU BITs? Not necessarily!

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On 19 June 2018, the European Commission published a communication on the protection of intra-EU investments (the Communication).

One important take-away from this Communication is the implication that the European Commission draws from the judgment handed down by the Court of the Justice of the European Union (the CJEU) in Achmea.

According to the Commission:

In the Achmea judgment the Court of Justice ruled that the investor-to-State arbitration clauses laid down in intra-EU BITs undermine the system of legal remedies provided for in the EU Treaties and thus jeopardise the autonomy, effectiveness, primacy and direct effect of Union law and the principle of mutual trust between the Member States. Recourse to such clauses undermines the preliminary ruling procedure provided for in Article 267 TFEU, and is not compatible with the principle of sincere cooperation. This implies that all investor-State arbitration clauses in intra-EU BITS are inapplicable and that any arbitration tribunal established on the basis of such clauses lacks jurisdiction due to the absence of a valid arbitration agreement. As a consequence, national courts are under the obligation to annul any arbitral award rendered on that basis and to refuse to enforce it. Member States that are parties to pending cases, in whatever capacity, must also draw all necessary consequences from the Achmea judgment. Moreover, pursuant to the principle of legal certainty, they are bound to formally terminate their intra-EU BITs.

The Achmea judgment is also relevant for the investor-State arbitration mechanism established in Article 26 of the Energy Charter Treaty as regards intra-EU relations. This provision, if interpreted correctly, does not provide for an investor-State arbitration clause applicable between investors from a Member States of the EU and another Member States of the EU. Given the primacy of Union law, that clause, if interpreted as applying intra-EU, is incompatible with EU primary law and thus inapplicable. Indeed, the reasoning of the Court in Achmea applies equally to the intra-EU application of such a clause which, just like the clauses of intra-EU BITs, opens the possibility of submitting those disputes to a body which is not part of the judicial system of the EU. The fact that the EU is also a party to the Energy Charter Treaty does not affect this conclusion: the participation of the EU in that Treaty has only created rights and obligations between the EU and third countries and has not affected the relations between the EU Member States.” (emphasis added)

In the Q&A that accompanied the Communication, the European Commission also emphasised that the Achmea judgment does not have consequences for agreements with third countries. According to the Commission, Achmeaonly concerns intra-EU disputes” and “different legal considerations apply to external EU investment policies“.

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Shortly after the publication of the judgment in Achmea, my colleague Isabelle Van Damme and I published a first article in which we analysed the potential consequences of this judgment for 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).

Today, I (provocatively) develop that analysis further by arguing that, contrary to the position expressed by the European Commission in its Communication and in the Q&A, the findings of the CJEU in Achmea might not necessarily mark the end of (arbitration clauses in) all intra-EU bilateral investment treaties (intra-EU BITs)*. In addition, I also argue that, in some aspects, Achmea might also affect other types of international agreements concluded by the EU or other BITs concluded by EU Member States with one or more non-EU countries (extra-EU BITs).READ MORE

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CJEU Clarifies EU Jurisdictional Rules in Antitrust Damages Claims

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On 5 July 2018, the Court of Justice of the European Union (the CJEU) handed down an interesting decision in which it clarified the rules governing court jurisdiction in damages claims resulting from anticompetitive conduct.

In the case at hand, FlyLaL – a Lithuanian airline – brought a claim before the Lithuanian courts against Air Baltic and Riga airport (two Latvian companies) seeking compensation for alleged anticompetitive conduct. More particularly, FlyLaL argued that Air Baltic had abused its dominant position by engaging in predatory pricing on certain routes departing from and arriving at Vilnius airport. FlyLaL also argued that those predatory practices were the result of an anticompetitive agreement entered into between Air Baltic and Riga airport whereby Air Baltic benefited from discounts of 80% on fees for aircraft take-off, landing and security services offered by Riga airport. The savings made on those services allowed Air Baltic to fund its predatory prices which affected FlyLaL.

Relying on Article 2 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) which provides that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State“, both Air Baltic and Riga airport raised objections claiming that the Lithuanian courts lacked international jurisdiction and that the claim should have been brought before the Latvian courts instead.READ MORE

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U.S. Supreme Court Says Interpretative Statements on Foreign Law by Foreign Governments not Binding on U.S. Courts

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On 14 June 2018, the U.S. Supreme Court (the Supreme Court) gave judgment in Animal Science Products et al. v. Hebei Welcome Pharmaceutical Co. Ltd et al. finding that a federal court determining foreign law is not bound to accord conclusive effect to submissions of a foreign government.

The unanimous judgment concerned the application of Federal Rule of Civil Procedure 44.1 (Rule 44.1), which provides that a court may consider “any relevant material or source” when making a determination of foreign law, and that any such determination “must be treated as a ruling on a question of law“. In the case at hand, U.S. purchasers of vitamin C alleged that Chinese producers had formed a cartel and conspired to fix prices and quantities of exports in violation of U.S. antitrust law. The Chinese producers claimed that they were not liable for such a violation as they were legally obliged to comply with a pricing regime set by the Chinese Government.

At trial, the Chinese Ministry of Commerce intervened as amicus curiae in support of the Chinese producers. In its submission, the Chinese Government stated that the alleged cartel conspiracy was “a regulatory pricing regime mandated by the government of China“. The U.S. producers disputed this characterisation, and noted that the Chinese Government had (i) failed to identify any law or regulation expressly authorising such a regime and (ii) submitted in unrelated WTO proceedings that China had abandoned the practice of export administration of vitamin C.

At first instance, the District Court for the Eastern District of New York held that the Chinese Government’s submission was not conclusive and denied the Chinese producers’ application to dismiss the proceedings. On appeal, the Court of Appeals for the Second Circuit (the Appeals Court) reversed that decision, holding that it was “bound to defer” to reasonable interpretative statements made in court by a foreign government regarding the construction and effect of the foreign government’s own laws and regulations. The Supreme Court was therefore called upon to determine whether such statements could be considered conclusive when a federal court was required to determine foreign law in accordance with Rule 44.1.READ MORE

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Opinion 1/17 on CETA: Hearing Report

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On 26 June 2018, the Court of Justice of the European Union (the CJEU) heard the legal arguments raised by the institutions of the European Union and by some EU Member States in Opinion 1/17 on the compatibility of the Investment Court System (ICS) provided for in the EU-Canada Comprehensive Economic and Trade Agreement (CETA).

As we discussed before, the CJEU is requested to provide an opinion regarding the compatibility of the ICS contained in CETA with respect to: (i) the exclusive competence of the CJEU, pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU), to give a binding interpretation of EU law; (ii) the general principle of equality and the practical effect (‘effet utile‘) of EU law; (iii) the right of access to courts; and (iv) the right to an independent and impartial judiciary.

I was unfortunately unable to attend this hearing. However, my friend José Rafael Mata Dona attended the hearing and has kindly provided us with a summary of the main points which were raised.READ MORE

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Netherlands to Modernize Model BIT

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The Netherlands is currently modernizing its model bilateral investment treaty (model BIT) and has recently published the draft of the new model BIT that the government intends to use as a basis for (re-)negotiating their existing and future bilateral investment treaties with non-EU Member States.

Following numerous recent criticisms involving investment protection and investment arbitration, the new draft model BIT is clearly aimed at striking a better balance between the rights and duties of host States, on the one hand, and investors, on the other hand. To this end, the draft model BIT introduces some interesting developments. In particular, it introduces stricter requirements for investors seeking protection.

With respect to investment arbitration, the draft model BIT provides for the following key changes:READ MORE

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U.S. Supreme Court Rules on Enforceability of Individual Arbitration Agreements in Employment Contracts

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On 21 May 2018, the U.S. Supreme Court (the Supreme Court) handed down its decision in Epic Systems Corp. v. Lewis finding that arbitration agreements in which an employee agrees to arbitrate any claims against an employer on an individual rather than on a class or collective basis are enforceable and are not in violation of the National Labor Relations Act (the NLRA).

The judgment concerned three consolidated cases: Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris and NLRB v. Murphy Oil USA, Inc. As the Court noted, the three cases differed in detail but not in substance.

In previous decisions (see: AT&T Mobility v. Concepcion; American Express Co. v. Italian Colors Restaurant; DIRECTV, Inc. v. Imburgia), the Supreme Court had already ruled that companies were entitled to include individual arbitration clauses in their consumer contracts which explicitly precluded those consumers from resorting to class arbitration. In the present case, the Supreme Court had to rule on whether companies could also include individual arbitration clauses in their contract with their employees which required those employees to waive their rights to participate in class and collective actions.READ MORE

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