By Danilo Ruggero Di Bella On the premise that not all most-favoured-nation (MFN) clauses are created equal, this piece will explore whether it is possible to combine an MFN clause with a more favourable MFN clause contained in another treaty. The objective of doing so, would be to invoke another provision in that treaty (or … Continue reading Untapped Potential of MFN Clauses: an MFN clause to invoke another “more” MFN clause
By Agata Daszko and Kilian Wagner Introduction The Energy Charter Treaty (“ECT” or “Treaty”), signed in December 1994 in Lisbon, has its origins in the 1990 proposal of the Dutch Prime Minister, Ruud Lubbers, which first resulted in the European Energy Charter of 1991 as a political declaration and continued in the negotiations for a … Continue reading Modernisation of the Energy Charter Treaty: A necessary turning point for investment protection in the energy sector?
by Iván Levy Introduction On June 16, 2022, the Tribunal in Green Power Partners K/S & SCE Solar Don Benito APS v. The Kingdom of Spain (Green Power v. Spain) issued its award and became the first tribunal to uphold the so-called intra-EU objection. After a large number of decisions historically rejecting the objection, is … Continue reading Green Power v. Spain: Intra-EU Game Changer or an Exception that Confirms the Rule?
José Rafael Mata Dona1 As in the previous session of the stakeholder meeting organized by the European Commission (see here), this roundup started with a brief recap of the whole process of the UNICTRAL Working Group III (for a more detailed review of the EU’s proposal for a MIC and ISDS reform under the auspices of UNCITRAL … Continue reading Stakeholder meeting on a possible future Multilateral Investment Court: Establishment of a Multilateral Investment Court (Brussels, 15 January 2020)
Alexandros-Cătălin Bakos There is no denying that there is a serious backlash against investment arbitration at the moment. The signs are everywhere: from the latest discussions occurring within UNCITRAL’s Working Group III to the more recent practice of states (see the 22 European Union Member States’ declaration concerning the termination of their intra-EU Bilateral Investment … Continue reading Investment Tribunals Are Too Quick to Establish the Existence of Issue and Cause of Action Estoppel in International (Investment) Law
EFILA has recently submitted its suggestions to the UNCITRAL Working Group no. 3 on ISDS Reform. The entire document can be found here. An extract can be read below. The European Federation for Investment Law and Arbitration (EFILA) believes that no discussion about the reform of the investor-State dispute settlement (ISDS) system should occur without … Continue reading Ensuring Equitable Access to All Stakeholders: Critical Suggestions for the MIC (EFILA Submission to the UNCITRAL WG no. 3 on ISDS Reforms)
Alexandros Catalin Bakos, LL.M. Candidate, Utrecht University In a somewhat fortunate turn of events for the stability (or what is left of it in any case) of the intra-European Union (intra-EU) investment treaty system, the General Court of the European Union (GCEU) has annulled the EU Commission’s decision rendered against Romania for illegal state aid … Continue reading Schrödinger’s Investment: the EU’s General Court Considers that the Compensation Ordered by the Micula Tribunal is Not a Form of State Aid (Although it Might as Well Have Been)
Vishesh Sharma* and Vishakha Choudhary** Uniform jurisprudence concerning state counterclaims in investment arbitration remains elusive. Ordinarily, the conditions for their presentation are twofold: parties should have consented to arbitration of counterclaims, and the counterclaims should be connected to the primary claim. However, tribunals have oscillated between strict application of these criteria, to extreme dilution based … Continue reading Do New-Age International Investment Agreements Introduce a Method to the Madness of State Counterclaims in Investment Arbitration?
David Ndolo, Coventry Law School, Coventry University The UK parliament passed the European Union Withdrawal Act 2018 (“EUWA”) that gained royal accent on 26 June 2018. While the exit day is currently set for 29 March 2019, there is a proposed transition period until December 2020 in case a Brexit deal is agreed upon. In … Continue reading The End of West Takers in the UK? Anti-suit injunctions post-Brexit: The default ‘No-deal’ Scenario
by Avani Agarwal In November 2012, Gary Born proposed the idea of a Bilateral Arbitration Treaty (BAT), in a speech aptly titled “BIT’s, BAT’s and Buts” (available as an essay in the 13th Young Arbitration Review). He suggested developing a system of international treaties whereby countries decide that a particular set of international disputes (such … Continue reading Bilateral Arbitration Treaties: Are BATs Blind to Existing International Structures and Realities?