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

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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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EU and Canada Adopt Rules for Implementation of Investment Court System in CETA

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This article has been co-authored by Quentin Declève together with Nicholas Lawn (Partner at Van Bael & Bellis) and Isabelle Van Damme (Partner at Van Bael & Bellis)

On 29 January 2021, the European Union and Canada adopted four decisions (the Decisions) aimed at further implementing the Investment Court System (the ICS)  in the Comprehensive Economic and Trade Agreement between Canada, of one part, and the European Union and its Member States, of the other part (CETA). The Decisions will enter into force upon ratification of CETA by the EU Member States.

Following certain concerns expressed in relation to older models of investor-State dispute settlement (ISDS), the European Union has designed a new model for resolving disputes between foreign investors and States (or the European Union) which seeks to address such concerns. In particular, in recent years some have argued that the traditional form of ISDS does not guarantee fundamental rights and values relating to the independence of arbitrators, legitimacy, access to courts and transparency. In addition, traditional ISDS has been seen by some as failing to result in a coherent body of case-law regarding the interpretation and application of investment protection standards. The ICS aims to resolve these perceived shortcomings by establishing a permanent tribunal composed of independent and publicly appointed members of a first instance Tribunal and, in case of an appeal, an Appellate Tribunal.

Although the main characteristics of the ICS were already established in CETA (see Chapter 8 on Investment), some specific features and procedural mechanisms still had to be agreed by the EU and Canada. These details were therefore agreed in the Decisions of the CETA Joint Committee which (i) set out rules and procedures regarding the functioning of the Appellate Tribunal (the Decision on the Appellate Tribunal); (ii) establish a code of conduct for mediators and judges (the Decision on the Code of Conduct); (iii) provide rules for mediation (the Decision on Mediation); and (iv) establish rules for adopting binding interpretations of CETA (the Decision on Binding Interpretations).READ MORE

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Investment Protections Implications of Brexit and of EU-UK Trade and Cooperation Agreement

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This article has been co-authored by Quentin Declève together with Nicholas Lawn (Partner at Van Bael & Bellis) and Adriana Pérez-Gil (Associate at Van Bael & Bellis)

On 24 December 2020, the European Union (the EU) and the United Kingdom (the UK) agreed a Trade and Cooperation Agreement (the TCA) intended to settle their future relationship, with provisional application from 1 January 2021.

Following the UK’s exit from the EU on 31 January 2020 and the end of the transition period under the Withdrawal Agreement, the UK is no longer a member of the EU single market or the EU customs union. Whilst the TCA does not change this fact, it sets out separate terms for the new on-going relationship between the EU and the UK.

Title II of Part Two, Heading One (Trade) of the TCA includes provisions relating to “services and investment” (“SERVIN“). Yet, as explained below, the provisions are minimal and are limited to dealing with investment liberalisation, establishment, operation, market access and non-discriminatory treatment. In respect of investment protection, the TCA is more notable for what is out than what is in.READ MORE

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European Parliament Adopts Collective Redress Directive For Consumers

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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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CJEU’s Advocate General Hints at Invalidity of Intra-EU ISDS Disputes Based on Energy Charter Treaty

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I wanted to publish a short note on an Opinion handed down by Advocate General Saugmandsgaard Øe in which he provides his own personal answer to one of the most highly debatable questions among EU and arbitration practitioners. Namely, the impact of the Achmea judgment on intra-EU Investor-State disputes (ISDS) conducted pursuant to the Energy Charter Treaty (ECT).READ MORE

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U.K Supreme Court Clarifies Rules To Determine Arbitration Agreements’ Governing Law

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On 9 October 2020, the U.K. Supreme Court (the Supreme Court) handed down a judgment in which it ruled on the law governing an arbitration agreement.

Building on previous decisions handed down by English courts (in particular the decision of the English Court of Appeal in Sulamérica Cia Nacional de Seguros SA v. Enesa Engenharia SA), the judgment of the Supreme Court provides greater clarity in respect of the test to be applied to determine the governing law of an arbitration agreement, especially when the law applicable to the underlying contract containing that arbitration agreement differs from the law of the seat of arbitration.READ MORE

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