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Ημερομηνία

Multilateral Investment Court: Overview of the reform proposals and prospects

28-01-2020

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states ...

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states and stakeholders about the system's reliance on arbitrators, given its lack of transparency, issues over the predictability and consistency of their decisions, and the excessive costs involved. UNCITRAL talks aim to address these concerns by reforming the system. The EU and its Member States support the establishment of a multilateral investment court (MIC), composed of a first instance and an appellate tribunal staffed by full-time adjudicators. UNCITRAL talks on ISDS reform started in 2017. In April 2019, the working group finalised the list of concerns regarding the current ISDS system and agreed that it was desirable to work on reforms. The states then tabled reform proposals that provided the framework for the discussions that started in October 2019. The proposals range from introducing binding rules for arbitrators to setting up formal investment courts comprised of first instance and appellate tribunals. All in all, the proposals reflect two distinct approaches. Some states back the creation of tools – such as a code of conduct and/or an advisory body for smaller economies and small and medium-sized enterprises – to complement the current system. Others favour fundamental changes through the creation of a two-court system with appointed members. The latest round of talks took place in January 2020, and another is scheduled for March/April 2020. Although states are eager to reform the ISDS system, the complexity of the issue is likely to require additional sessions before agreement can be reached.

The settlement of disputes arising from the United Kingdom's Withdrawal from the European Union

17-11-2017

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the various jurisdiction options, under EU law and under public international law, in settling disputes arising from the Withdrawal Agreement of the UK from the EU and in the context of the Future Relationship Agreement with the UK. It examines in particular the continued involvement of the CJEU in the new context of the EU-UK relations ...

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the various jurisdiction options, under EU law and under public international law, in settling disputes arising from the Withdrawal Agreement of the UK from the EU and in the context of the Future Relationship Agreement with the UK. It examines in particular the continued involvement of the CJEU in the new context of the EU-UK relations and, based on CJEU case-law and previous international agreements, presents the various governance possibilities for these agreements.

Preliminary reference procedure

06-07-2017

The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create ...

The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create an additional mechanism – on top of the action for annulment of an EU act (set out in Article 263 TFEU) – for an ex post verification of the conformity of acts of the EU institutions with primary EU law (the Treaties and general principles of EU law). The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy and certain limitations in the area of judicial and police cooperation in criminal matters. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure. Nonetheless, CJEU judgments interpreting EU law enjoy an authority similar to those of national supreme courts in civil law countries – national courts interpreting EU law should take them into account. Furthermore, if the CJEU decides that an act of the EU institutions is illegal, no national court may find to the contrary and consider that act legal. The decision whether to submit a preliminary reference to the CJEU rests with the national court concerned. However, if it is a court of last instance and a question of interpretation of EU law or the validity of an act of the EU institutions is necessary to decide a question before it, that court must submit a question. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law. This briefing is one in a series aimed at explaining the activities of the CJEU.

In Pursuit of an International Investment Court. Recently Negotiated Investment Chapters in EU Comprehensive Free Trade Agreements in Comparative Perspective

04-07-2017

The study compares the revised and signed text of the Comprehensive Economic and Trade Agreement (CETA) with the EU-Vietnam Free Trade Agreement (EUVFTA) and the EU Singapore Free Trade Agreement (EUSFTA) in respect of important procedural aspects relating to investor State dispute settlement. The findings are juxtaposed to the procedural rules governing the preliminary reference procedure and direct action (action for annulment) before the Court of Justice of the European Union as well as the individual ...

The study compares the revised and signed text of the Comprehensive Economic and Trade Agreement (CETA) with the EU-Vietnam Free Trade Agreement (EUVFTA) and the EU Singapore Free Trade Agreement (EUSFTA) in respect of important procedural aspects relating to investor State dispute settlement. The findings are juxtaposed to the procedural rules governing the preliminary reference procedure and direct action (action for annulment) before the Court of Justice of the European Union as well as the individual application before the European Court of Human Rights. In doing so, it provides a tool and manual to evaluate the EU’s todays and future progress in reforming the international investment law regime. By outlining key features of the procedural frameworks governing two international courts, some ‘tried and tested’ concepts as source of inspiration for the possible design of a ‘multilateral investment court’ might be found.

Εξωτερικός συντάκτης

Prof. Dr. Steffen HINDELANG, LL.M., Department of Law, Freie Universität Berlin, Germany and Ass. iur. Teoman M. HAGEMEYER, Dipl. iur. oec., Ph.D. candidate at the Department of Law, Freie Universität Berlin, Germany

Legal Instruments and Practice of Arbitration in the EU (Study, Annex, Questionnary, Answers to Questionnary)

15-01-2015

Upon request by the JURI Committee, this study investigates the law and practice of arbitration across the European Union and Switzerland. It includes an in-depth examination of the practice and the laws relating to arbitration in each Member State of the European Union and Switzerland, as well as an examination of the involvement of Member States and the European Union in arbitration. While substantial harmony exists across the European Union at both the level of law and practice, the Study finds ...

Upon request by the JURI Committee, this study investigates the law and practice of arbitration across the European Union and Switzerland. It includes an in-depth examination of the practice and the laws relating to arbitration in each Member State of the European Union and Switzerland, as well as an examination of the involvement of Member States and the European Union in arbitration. While substantial harmony exists across the European Union at both the level of law and practice, the Study finds that arbitration in the European Union is predominantly regional, rather than transnational. It also concludes that investment arbitration is often a beneficial feature of investment agreements, although the terms of such agreements must be carefully designed.

Εξωτερικός συντάκτης

Tony COLE, Ilias BANTEKAS, Federico FERRETTI, Christine RIEFA, Barbara WARWAS and Pietro ORTOLANI

Investor-State Dispute Settlement (ISDS) Provisions in the EU's International Investment Agreements (Volume 1: Workshop ; Volume 2: Studies - in the Annex)

04-09-2014

The European Parliament organised a workshop on 1 April 2014 on Investor-State Dispute Settlement (ISDS) provisions in the EU's international investment agreements. Volume 1 of this publication describes the proceedings of this workshop, while Volume 2 contains three studies: one on Investment protection agreements as instruments of international economic law, one on ISDS and alternatives of dispute resolution in international investment law, and another on International investment protection agreements ...

The European Parliament organised a workshop on 1 April 2014 on Investor-State Dispute Settlement (ISDS) provisions in the EU's international investment agreements. Volume 1 of this publication describes the proceedings of this workshop, while Volume 2 contains three studies: one on Investment protection agreements as instruments of international economic law, one on ISDS and alternatives of dispute resolution in international investment law, and another on International investment protection agreements and EU law.

Investor-State Dispute Settlement (ISDS): State of play and prospects for reform

21-01-2014

Investor-State Dispute Settle­ment (ISDS) mechanisms are found in more than 3 000 international investment treaties, but have been increasingly criticised in recent years. Their advocates defend them as a depoliticised neutral system to resolve disputes between foreign investors and host states. The issue of ISDS has lately come to public attention in the EU, with the completion of negotiations for a Comprehensive Economic and Trade Agreement (CETA) with Canada, and the opening of negotiations on ...

Investor-State Dispute Settle­ment (ISDS) mechanisms are found in more than 3 000 international investment treaties, but have been increasingly criticised in recent years. Their advocates defend them as a depoliticised neutral system to resolve disputes between foreign investors and host states. The issue of ISDS has lately come to public attention in the EU, with the completion of negotiations for a Comprehensive Economic and Trade Agreement (CETA) with Canada, and the opening of negotiations on a Transatlantic Trade and Investment Partnership Agreement.

Responsibility in Investor-State Arbitration in the EU - Managing Financial Responsibility Linked to Investor-State Dispute Settlement Tribunals Established by EU's International Investment Agreements

03-12-2012

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought ...

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought under investment agreements or chapters concluded between the EU (or the EU and its MSs) and a third state. Moreover, the proposal deals with the representation of the EU or MS in arbitral proceedings. The study provides background under public international law by setting out the responsibility of states and international organisations, and considers the financial reimbursement laws and policies of several federal states. Further analysis is provided on the proposal’s respective provisions on financial distribution, respondent status, settlement and the technical aspects of reimbursement. Particular attention is given to the external competence of the EU in relation to the internal competences of MSs, specifically with regard to standards of treatment. Other issues addressed include executive federalism with respect to allocating financial responsibility and the balance between unity of external representation and MS' interests. The conclusions are largely based on the issue of internal/external competence, acknowledging the importance of the language of future investment agreements and chapters in clarifying some of these technical aspects.

Εξωτερικός συντάκτης

Christian TIETJE, Emily SIPIORSKI and Grit TÖPFER (Law School of University Halle, Germany)

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