European Investment Law and Arbitration Review Online最新文献_第2页

Energy Charter Treaty and the Paris Agreement – Friends or Foes? – 7th EFILA Lecture (28 October 2021) 《能源宪章条约》与《巴黎协定》——是敌是友?-第七次EFILA讲座(2021年10月28日)

European Investment Law and Arbitration Review Online Pub Date : 2022-12-21 DOI: 10.1163/24689017_0701011

A. Magnusson

引用次数: 0

Does the cjeu Misunderstand Investment Treaty Arbitration in Commission v Micula? 欧盟是否误解了投资条约仲裁委员会诉米丘拉案?

European Investment Law and Arbitration Review Online Pub Date : 2022-12-21 DOI: 10.1163/24689017_0701004

Szilárd Gáspár-Szilágyi, M. Usynin

{"title":"Does the cjeu Misunderstand Investment Treaty Arbitration in Commission v Micula?","authors":"Szilárd Gáspár-Szilágyi, M. Usynin","doi":"10.1163/24689017_0701004","DOIUrl":"https://doi.org/10.1163/24689017_0701004","url":null,"abstract":"This article focuses on the recent judgment of the Court of Justice of the EU (CJEU) in European Commission v Micula (C-638/ 19 P) concentrating on two paragraphs in particular, namely paragraphs 144–145. These passages lead us to believe that the Court of Justice’s more recent and hostile attitude towards intra-EU investment treaty arbitration (in Achmea, Komstroy, and PL Holdings) might be a result of several misunderstandings by the Court on how investor-state arbitration and bit s work. The first concerns the nature of consent to arbitrate under an investment agreement. The second concerns the purpose of investor-state dispute settlement (ISDS), and the third relates to the retroactive effects of the Court’s judgment in relation to Romania’s consent to arbitrate under the Romania-Sweden BIT. From these three issues the fourth misunderstanding follows, which is a lack of clarity on the relationship between EU law and the Member States’ existing obligations under the ICSID Convention. This discussion is relevant because it shows that when a court which is foreign to a system and uses the features of that system to define and develop its own legal system, the chances that the foreign system will be potentially misunderstood or mischaracterised are very high. This in turn will not only cause legal problems, such as issues with legal certainty and the finality of decisions for already concluded arbitrations, but it will also set in motion other unexpected consequences.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117178491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Law of Arbitration and EU Law – like Oil and Water? 仲裁法和欧盟法——像石油和水?

European Investment Law and Arbitration Review Online Pub Date : 2022-12-21 DOI: 10.1163/24689017_0701006

Morten Broberg, N. Fenger

{"title":"The Law of Arbitration and EU Law – like Oil and Water?","authors":"Morten Broberg, N. Fenger","doi":"10.1163/24689017_0701006","DOIUrl":"https://doi.org/10.1163/24689017_0701006","url":null,"abstract":"The relationship between EU law and the law of arbitration has often been described as one of mutual indifference. However, from about 2010, the two systems began to interact with one-another through certain decisions of the CJEU. This led some observers to argue that the two systems had become intertwined. In order to establish whether the decisions of the CJEU provide a basis for such a finding, the present article considers the interaction between the two legal systems in three different areas. Firstly, whether in certain situations an arbitral tribunal must take EU law into consideration when deciding a dispute. Secondly, those situations where, one way or another, a Member State has been involved in the arbitration. Thirdly, the question whether arbitral tribunals can make so-called preliminary references to the CJEU under the TFEU. While the examination of the relationship between EU law and the law of arbitration shows that increasingly the two systems interact with each other, it also shows that in relative terms there are only a limited number of instances where EU law plays a role within the field of private arbitration. The article therefore concludes that the law of arbitration and EU law continue to be distinct legal systems.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126262646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Micula v Romania – A Saga of Lasting Significance 米库拉诉罗马尼亚-一个具有持久意义的传奇

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601004

Lawrence Northmore-Ball, J. Harvey, Amber Courtier

{"title":"Micula v Romania – A Saga of Lasting Significance","authors":"Lawrence Northmore-Ball, J. Harvey, Amber Courtier","doi":"10.1163/24689017_0601004","DOIUrl":"https://doi.org/10.1163/24689017_0601004","url":null,"abstract":"The dispute between the Micula parties and Romania has continued for over 16 years raising issues in investment arbitration and European Union (EU) law and particularly the enforceability of arbitral awards in varying jurisdictions. The proceedings, first brought before an ICSID Tribunal in 2005 (followed by annulment proceedings) have since led to enforcement proceedings across multiple fora including the EU Commission (involving State aid rules) as well as EU, English and US domestic courts. Whilst the Micula saga may be inching near to a conclusion, it threatens to cause lasting damage to what was intended to be a closed ecosystem of the ICSID Convention. A precedent has been set whereby instead of enforcing awards in accordance with the provisions of the ICSID Convention, Courts of ICSID Member States may proceed to enforce awards as though the ICSID Convention did not apply. As such, a discussion may need to take place in relation to the possible amendment of certain provisions of the ICSID Convention; however, in the short term it is important that supranational bodies unrelated to the ICSID Convention do not interfere with the obligations of ICSID Member States or purport to prohibit ICSID Member States from complying with ICSID awards.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116672908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Here Comes Doomsday … Or Does It? – Implications of Achmea on Intra-EU Investment Arbitration in Light of Recent Case Law 世界末日来了，还是真的来了?-根据最近的判例法，《阿赫玛协定》对欧盟内部投资仲裁的影响

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601007

Marek Anderle, A. Leontiev

{"title":"Here Comes Doomsday … Or Does It? – Implications of Achmea on Intra-EU Investment Arbitration in Light of Recent Case Law","authors":"Marek Anderle, A. Leontiev","doi":"10.1163/24689017_0601007","DOIUrl":"https://doi.org/10.1163/24689017_0601007","url":null,"abstract":"This article follows recent developments in the intra- EU investment arbitration case-law after the publication of the CJEU’s judgment in Slovak Republic v Achmea BV (Achmea judgment) and the subsequent signing of the so-called ‘Achmea declarations’ on 15 and 16 January 2019 and the Agreement for the Termination of Bilateral Investment Treaties Between the EU Member States on 5 May 2020 (Termination Agreement). Although the decisions of investment tribunals analysed in this article show that all tribunals uniformly dismissed the jurisdictional objection of the respondent States based on the cjeu’s conclusions in the Achmea judgment, this article explores the very different reasons adopted by the tribunals when doing so, and the potential challenges ahead, especially once the Termination Agreement enters into ‘full’ force. Based on different approaches taken by the tribunals with regard to the applicability of the Achmea judgment, this article addresses its implications separately for ect arbitrations, icsid arbitrations and bit arbitrations, while drawing attention to the important similarities and differences between the decisions.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"48 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129041642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Article 26(7) of the Energy Charter Treaty – An Analysis into Its Inadequacies and a Proposal for Potential Remedies 《能源宪章条约》第26(7)条-对其不足之处的分析和可能的补救建议

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601010

Yash Shiralkar

引用次数: 0

Gary B. Born International Commercial Arbitration (Wolters Kluwer, 3rd ed., 3 volumes, 2021) ISBN: 978-94-035-2643-0, $569 (hardback) Gary B. Born国际商事仲裁(Wolters Kluwer，第3版，3卷，2021)ISBN: 978-94-035-2643-0, 569美元(精装本)

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601020

N. Lavranos

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The ect, Achmea and Intra-EU Arbitration – Swedish Court Requests Preliminary Ruling from the CJEU 欧盟内部仲裁——瑞典法院要求欧盟法院作出初步裁决

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601011

Anina Liebkind, Fredrik Norburg, Ossian Dittmer Hvarfner

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Revisiting the Concept of Legitimate Expectations in Renewable Energy Treaty Cases 重新审视可再生能源条约案例中的合法期望概念

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601008

Lucian Ilie

{"title":"Revisiting the Concept of Legitimate Expectations in Renewable Energy Treaty Cases","authors":"Lucian Ilie","doi":"10.1163/24689017_0601008","DOIUrl":"https://doi.org/10.1163/24689017_0601008","url":null,"abstract":"The past decade has seen a significantly increased level of foreign investment as a result of international initiatives on the development of alternative energy sources. The renewable energy sector often depends on significant up- front investments, which can only be recouped over a long period. Given the substantial initial capital investment required, many countries have implemented government subsidies and support schemes to encourage investments in renewable energy. For different reasons, some countries have recently decided to change or eliminate those incentives, triggering a wave of arbitral proceedings. These disputes raise fundamental questions, particularly concerning the need for investment protection, on the one hand, and the host State’s right to regulate, on the other. This article provides an overview of the evolution of the concept of legitimate expectations in renewable energy cases, which covers (1) the traditional approach giving rise to legitimate expectations, reflecting contractual arrangements and specific commitments or representations made by States, and (2) the modern approach where legitimate expectations may arise under a general domestic regulatory or legislative framework aimed to attract investments, and from investors’ expectations to obtain a ‘reasonable rate of return’ on their investments.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114972954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Investment Treaty Implications of Covid-19 Responses by States 各国应对Covid-19对投资条约的影响

European Investment Law and Arbitration Review Online Pub Date : 2021-12-20 DOI: 10.1163/24689017_0601002

N. Lavranos, Ahmed Mazlom

{"title":"The Investment Treaty Implications of Covid-19 Responses by States","authors":"N. Lavranos, Ahmed Mazlom","doi":"10.1163/24689017_0601002","DOIUrl":"https://doi.org/10.1163/24689017_0601002","url":null,"abstract":"By analysing Covid- 19 measures taken by States in eleven jurisdictions – whilst considering a range of international investment agreements (iia s) including ‘old – school’ European bit s, North American style treaties, and Asian investment treaties – the authors examine to what extent Covid- 19 measures could potentially result in investment treaty claims. This study presents these implications through a balanced overview of treaty-based grounds and justifications, which are built upon classical investment protections and fundamental doctrines. When State measures are examined in terms of aim, effect, duration, and scope, a typology emerges that not only classifies, but also reveals similar patterns crystallising across varied jurisdictions – despite a decentralised and disparate approach taken by States. The comparative analysis of generational differences between iia s determines the probability of successfully invoking claims, whilst simultaneously assessing the risks for States seeking to rely upon treaty- based justifications. Thus, when read by States, this legal analysis amounts to a risk assessment, and when read by foreign investors, serves as a guide on recourse. The authors conclude that States should include ‘pandemic- proof’ provisions in prospective iia negotiations, and thus, potentially ushering a dawn of new ‘pandemic- proof iia s’.","PeriodicalId":164842,"journal":{"name":"European Investment Law and Arbitration Review Online","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133467017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0