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international litigation blog

Achmea – A Year After: My Contribution in European Papers

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Dear readers,

As we have just celebrated the first anniversary of the Achmea judgment (which the Court of Justice of the European Union (CJEU) handed down on 6 March 2018), I wanted to share with you an article that I have just published in the European Papers[1] on the implications of that judgment on investor-State dispute settlement and applicable law clauses in BITs and other agreements concluded by the EU (or its Member States) with third countries.READ MORE

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European Parliament Amends Proposal for Directive on Collective Representative Actions

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On 7 December 2018, the European Parliament’s Legal Affairs Committee adopted a Report (the Report) on the proposal (the Proposal) for a Directive on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC. This Resolution amends the proposal published by the European Commission in April 2018 (see previous article here).

The Proposal enables collective redress actions against infringements of EU law with a broad consumer impact. Accordingly, it covers areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health.

The measures contained in the Proposal remain largely unchanged. However, in its Report, the Committee on Legal Affairs puts forward a number of interesting amendments to the initial Proposal.READ MORE

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Opinion 1/17 on CETA: Advocate General Bot Finds Investment Court System in CETA compatible with EU law

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

On 29 January 2019, Advocate General Bot delivered his long-awaited Opinion (the Opinion) on whether the investment court system (ICS) in Chapter Eight, Section F, of the European Union-Canada Comprehensive Economic and Trade Agreement (CETA) is compatible with European Union (EU) law, in particular with the autonomy of the EU legal order and fundamental rights. The next step in the proceedings before the Court of Justice of the European Union (CJEU), initiated by Belgium following complications in its ratification process, is for the CJEU to deliver its Opinion on the same question (see previous post here and report of the hearing before the CJEU here).

This article discusses the key elements of the Opinion and the implications of these CJEU proceedings on the European Union’s common commercial policy and its policy of advocating reform of existing investor-State dispute settlement (ISDS) and the establishment of a multilateral investment court (MIC).READ MORE

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ISDS Reform, Intra-EU BITs and CETA: New and Upcoming Developments

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On 19 January 2019, the European Union submitted new proposals to the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) tasked with examining the reform of investor-State dispute settlement (ISDS).

As we have reported before (see here, here, here and here), discussions are currently being held within WGIII on a possible reform of ISDS mechanisms. Those rounds of discussions take place twice a year (in April and in November) and were initiated in November 2017. The discussions are divided into three distinct phases: identifying concerns about ISDS (Phase I); considering whether reform of the current system is desirable in the light of any identified concerns (Phase II); and designing options for reform responding to any such concerns (Phase III).

After its 36th Session (which took place in Vienna in October-November 2018), WGIII has now almost completed Phase II of its mandate.

In order to move into Phase III and start discussing concrete reform options, the Chairman of WGIII has invited countries involved in the discussions to submit proposals regarding the content of such reform as well as the roadmap to achieve those reforms. Those proposals would then be discussed during the next meeting of WGIII in April 2019.

In light of this invitation, the EU has now submitted two papers to the WGIII Secretariat.READ MORE

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Belgian Parliament Amends Bill Establishing Brussels International Business Court

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On 10 December 2018, the Commission for Justice of the Belgian Parliament published a second draft bill (the Bill) for the creation of the Brussels International Business Court (the BIBC). The Belgian government had already approved a first draft in October 2017 and submitted it to Parliament in May 2018. The Bill now aims to reflect the opinions expressed by the Belgian Council of State and of the High Council of Justice (Hoge Raad voor de Justitie/Conseil supérieur de la Justice), as well as the amendments suggested by various members of the Parliament. This being said, the key features of the BIBC remain largely unchanged.READ MORE

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EU Requests Consultations with South Korea under EU-Korea Trade Agreement Over Labour Rights Commitments

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Dear Readers, Happy New Year!

In order to kick-start the year, I wanted to draw your attention to a very interesting development that took place in the field of international trade law at the end of 2018.

On 17 December 2018, the European Union (the EU) requested formal consultations with South Korea following Korea’s failure to implement certain sustainable developments commitments made under the EU-Korea Trade Agreement.

This request for consultations (which was made under Article 13.14 of the EU-Korea Trade Agreement) is the first phase of formal dispute settlement provided for in Chapter 13 of the EU-Korea Trade Agreement. Those consultations will give the EU and Korea an opportunity to discuss the matter, create a channel of communications and find an amicable solution.READ MORE

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Commisimpex Saga – 2018 Developments in France on State Immunity from Execution

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Before 2018 comes to an end, I wanted to report on the developments on State immunity from execution (and more particularly on the Commisimpex saga) that took place in France this year.

The Commisimpex saga relates to a dispute between Société Commissions Import Export (Commisimpex) and the Republic of Congo (Congo) regarding unpaid debts due by Congo to Commisimpex.

After having obtained two ICC awards in its favour in 2000 and 2013, Commisimpex sought to enforce them against Congo in France.

In a notable case, it sought to attach banks accounts held by the Congolese embassy in Paris as well as by the Congolese delegation to UNESCO. In addition to the arbitral awards, Commisimpex relied on a waiver granted by Congo in the 1990s which entitled Commisimpex to attach diplomatic assets.READ MORE

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