Quentin Decleve, Author at international litigation blog
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Author: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

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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

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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.

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European Commission Rejects UK Application to Join Lugano Convention

On 4 May 2021, the European Commission (the Commission) published a communication which recommends that the European Union (the EU) should not approve the United Kingdom’s (UK) application to accede to the 2007 Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; the Lugano Convention).

The Lugano Convention governs international jurisdiction and the enforcement of judgments in civil and commercial matters between the EU Member States and three of the European Free Trade Association (EFTA) States, notably Iceland, Switzerland and Norway.

In its communication to the European Parliament and the Council, the Commission indicated that the Lugano Convention is aimed solely at third countries that have a particularly close regulatory integration with the EU and that “participate, at least partly, in the EU’s internal market“, which is the case for countries that are part of the European Economic Area. By deciding to leave the EU and the Single Market, the UK has, in the view of the Commission, become a “third country without a special link to the internal market“. As a result, the Commission considers that future civil judicial cooperation between the EU and the UK should be governed by the multilateral Hague Conventions, in line with the EU consistent policy towards all third countries.

The Commission’s recommendation is non-binding and the final decision on the UK accession rests on the EU Council.

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UK Supreme Court Confirms Jurisdiction Over Claims Brought Against UK Parent Companies for Acts Committed Abroad by Foreign Subsidiaries

On 12 February 2021, the UK Supreme Court (the Supreme Court) handed down judgment in the Okpabi and others (Appellants) v. Royal Dutch Shell Plc and another (Respondents). The case follows from a decision of the English Court of Appeal (the Court of Appeal) on 14 February 2018 which was discussed here.

The preliminary question before the Supreme Court regards the admissibility, before U.K. courts, of legal proceedings brought by a Nigerian farming and fishing community of approximately 40,0000 individuals against Royal Dutch Shell (RSD) – a UK-domiciled parent company – for oil pollution in the Niger Delta allegedly caused by RDS’s Nigerian subsidiary (Shell Petroleum Development Company of Nigeria Ltd (SPDC)).

In 2018, the Court of Appeal rejected the claim finding – among other things – that the claimants had failed to demonstrate an arguable case that RDS controlled SPDC’s operations in the Niger Delta or that RDS was otherwise responsible for the latter’s failures.

In its decision of 12 February 2021, the Supreme Court rejected the decision of the Court of Appeal as having erred in law.READ MORE

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European Commission Launches Public Consultation on Modernising Cross-border Judicial Cooperation

On 16 February 2021, the European Commission (the Commission) launched a public consultation to gather the views of stakeholders on its initiative to propose a new legislation to digitalise all data exchanges and communications taking place in the context of judicial cooperation between EU Member States. The Commission’s proposal for a new legislation is expected to be published by the end of 2021.READ MORE

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European Parliament Adopts Collective Redress Directive For Consumers

On 24 November 2020, the European Parliament (the EP) adopted a Directive on representative actions for the protection of the collective interests of consumers (the Collective Redress Directive or CRD).

The proposed CRD was initially published by the European Commission (the Commission) in April 2018. The proposal was then examined by the EP and by the Council of the European Union (the Council), which entered into interinstitutional negotiations in January 2020. The EP and the Council reached a political agreement on the final text of the Directive on 22 June 2020. On 4 November 2020, the Council adopted its position at first reading, which has now been formally approved by the EP and has since also been published in the Official Journal (Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC, O.J. (2020) L 409/1).

The CRD establishes an EU-wide “class action” or “representative action”. It covers infringements of EU law which are harmful to the collective interests of natural persons in their capacity as consumers, regardless of whether those consumers are referred to in the relevant instruments as “consumers”, “travellers”, “users”, “customers”, “retail investors”, “data subjects” or otherwise. Accordingly, representative actions may be brought not only for infringements of general EU consumer law, but also of EU rules pertaining to the protection of personal data, geo-blocking, financial services, energy and telecommunications.READ MORE

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