External Contributor, Author at international litigation blog
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Author:External Contributor

Some Initial Reflections on CJEU’s Decision to Uphold Jurisdiction in Case C-741/19 (République de Moldavie)

By Giorgia Sangiuolo, Fellow at the Centre of European Law, King’s College London

On 2 September 2021, the Court of Justice of the European Union (the CJEU or the Court) rendered its decision in Case C-741/19 (République de Moldavie)[1]. The decision was given in the context of a reference for a preliminary ruling received from the Paris Court of Appeal on the interpretation of the Energy Charter Treaty (the ECT) in proceedings to set aside an international arbitral award rendered in a dispute between a Ukrainian investor and Moldova.

Following the conclusions reached by Advocate General Szpunar last March[2], the Court concluded that:

– it had jurisdiction to issue a preliminary ruling interpreting an international treaty to which the EU and some Member States are a party in a case which involved neither of them; and

– the application of the Investor State Dispute Settlement (ISDS) mechanism under Article 26 of the ECT between Member States is incompatible with EU law.

On this basis, the Court then moved to provide the referring French court with an interpretation of the concept of “investment” in Article 1(6) of the ECT.

This post sets out some initial thoughts on the decision of the CJEU to assume jurisdiction. After setting out the background of the dispute (section 1) and the reasoning of the CJEU on this point (Section 2), the post maintains that the judgment, and Advocate General Szpunar’s Opinion that the Court closely followed, seem to go well beyond judicial precedents and appear decoupled from any concerns regarding the risk of fragmentation of EU law (Section 3).

The post then concludes that the judgment seems to suggest that any link, however small, with EU law may be relied upon by the Court to interpret international treaties to which the EU is a party, together with its Member States, even when they have a merely potential, future relevance for EU law (section 4). It is argued that the Court’s decision in République de Moldavie seems to be guided by practical aims and seems to reveal that the Court intends to take an active role in shaping the external relations of the EU. The post finally observes that the Court’s decision may have some relevant practical consequences: parties to future ISDS proceedings under EU agreements, whether mixed or exclusive, regardless of their ties with the EU, will want to keep this case in mind if they wish to avoid the involvement of the CJEU in follow on proceedings before the national courts of the Member States.READ MORE

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U.S. Supreme Court Rules on Whether Domestic Doctrines Bind Non-Signatories to Int’l Arbitration Agreement Under New York Convention

By Erico Bomfim de Carvalho – Partner at Advocacia Velloso in Brasília (Brazil).

On 1 June 2020, the U.S. Supreme Court (the Supreme Court) issued its unanimous decision in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC.

The issue of the case can be summarized as follows: whether the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), conflicts with domestic doctrines (such as equitable estoppel) that permit the enforcement of arbitration agreements by non-signatories.

The Supreme Court answered in the negative: the New York Convention does not conflict with such domestic doctrines. Therefore, under the New York Convention, individuals or entities that have not signed an arbitration agreement (i.e., non-signatories) are allowed to compel arbitration under the domestic doctrine of equitable estoppel.

The decision is important in many aspects. Most notably, the decision reaffirms the New York Convention’s pro-arbitration policy and shines light on the symbiotic interaction between Chapters 1 and 2 of the Federal Arbitration Act (the FAA).READ MORE

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WTO and Multi-Party Interim Appeal Arbitration Arrangement: Searching for Right Medicine

By Thibaud Bodson – PhD candidate at the Human Rights Under Pressure program – Freie Universität Berlin & Hebrew University of Jerusalem. The views expressed in this article are those of the authors only.

A group of World Trade Organisation’s members recently endorsed the Multi-party interim appeal arbitration arrangement. This arrangement aims to keep a two-tier adjudication system operating as long as the WTO’s Appellate Body is stalled. As such, it offers a short term fix to the jurisdictional arm whilst the membership tries to move ahead in its search for the right medicine. This blogpost discusses some of the arrangement’s main features.READ MORE

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

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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Modernizing ICSID’s Rules for Resolving Investment Disputes

By Martina Polasek and Damon Vis-Dunbar[1]

The procedural rules of the International Centre for Settlement of Investment Dispute  (ICSID) have been successfully applied to hundreds of cases since they were first adopted in 1967, a remarkable testament to the innovative spirit and foresight of the original drafters. The robustness of the rules has also made the task of gradual modernization much easier.

The rules have, in fact, evolved over the last 50 years. In 1978, the ICSID Additional Facility was created, offering arbitration, conciliation, and fact-finding services to disputes that fall outside the scope of the ICSID Convention – namely where only one of the parties is an ICSID Member State or national of one, or where the dispute does not arise “directly” out of an investment between a state and a foreign national.

There have been three subsequent rounds of rule changes, the most recent of which entered into force in April 2006. Those amendments included strengthened disclosure requirements for arbitrators; expanded transparency provisions (including a provision allowing open hearings); and a new rule allowing a party to obtain an early dismissal of a case due to manifest lack of legal merit[2].

As readers of this blog may be aware, ICSID is now in the process of updating its rules for the fourth time. Notably, the amendments under consideration are the most extensive to date. They cover the ICSID Regulations and Rules, adopted pursuant to the ICSID Convention; the Additional Facility Rules; the Administrative and Financial Regulations; and the Institution Rules.READ MORE

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Opinion 1/17 on CETA: Hearing Report

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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