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international litigation blog

EU Commission Appeals EU General Court’s Judgment in Micula

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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

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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

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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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Compliance with Labour Obligations Under EU-Korea FTA’s Trade and Sustainable Development Chapter

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By Thibaud Bodson – PhD candidate at the Human Rights Under Pressure program –  Freie Universität Berlin & Hebrew University of Jerusalem

On 4 July 2019, the European Commission (the EU Commission) triggered the second stage of the dispute settlement procedure against the Republic of South Korea in a case on compliance with labour obligations under Chapter 13 of the EU-Korea FTA. While the first stage, already discussed in a previous post, pertained to consultations between both parties, the second stage provides for the settlement of the dispute by a Panel of Experts.READ MORE

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

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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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EU General Court Annuls Micula State Aid Decision

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On 18 June 2019, the General Court of the European Union (the General Court) handed down its long-awaited judgment in the Micula case.

As we discussed before, this case finds its origins in the investment made by the Miculas, two investors of Swedish nationality, in the food production sector in Romania in the 1990s. At the time of investment they relied on numerous tax incentives regimes that Romania had put in place in order to attract foreign investment.

In 2005, as Romania prepared to accede to the European Union, the tax incentives were revoked in an effort to conform to EU law on State aid.

The Miculas then instituted ICSID proceedings against Romania based on the Romania-Sweden Bilateral Investment Treaty, arguing that the revocation of the tax incentives constituted a breach of their rights under that treaty. The arbitral tribunal issued its award in 2013, holding that by revoking the incentives, Romania had indeed failed to award the claimants fair and equitable treatment. The arbitral tribunal awarded the Miculas EUR 180 million.

In 2015, the European Commission handed down a decision (the 2015 EU decision) declaring that the ICSID award in favour of the Miculas amounted to State aid. The 2015 EU decision required Romania to refrain from paying the amount due under the award. The Commission also ordered Romania to recover any compensation already awarded to the Miculas.

The Miculas sought to challenge this 2015 EU decision before the General Court.READ MORE

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U.S. Courts Cannot Infer Class Arbitration from Ambiguous Arbitration Clause

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The U.S. Supreme Court (the Supreme Court) has been historically wary of permitting class arbitration (see previous blog post), especially in the absence of clearly defined limits or of express language permitting it in an arbitration agreement. The Supreme Court affirmed this restraint in a recent 5–4 decision, Lamps Plus, Inc., v. Varela, in which it held that courts cannot infer parties’ consent to class arbitration from an ambiguous arbitration clause in an employment contract.READ MORE

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