Report on the 5th EFILA Annual Conference held on 30th January 2020 in London

by Dr. David Pusztai (Quinn Emanuel Urquhart & Sullivan, LLP

The European Federation for Investment Law and Arbitration (EFILA) held its 5th Annual Conference on 30 January 2020 in London, with a focus on Investment Arbitration in the EU: Alternatives to Intra-EU BITs”. As the Secretary-General of the International Centre for Settlement of Investment Disputes, Meg Kinnear, noted in her keynote speech, there is no small irony in alternative dispute settlement” today being understood as a reference to alternatives of investment arbitration. Arbitration has traditionally been perceived as the epitome of alternative dispute settlement mechanisms, yet today the attention shifts to its alternatives: back to domestic court proceedings, to conciliation, mediation and fact findings.

The Secretary-General stressed that ICSID responds to the call for alternatives. Kinnear discussed proposed changes to the ICSID Conciliation Rules, as well as the proposed mediation and fact-finding rules in great detail. The upshot of consultation with stakeholders at the ICSID level was that parties expect less formalism, more flexibility in procedures, and more available procedural options. These considerations have been key pointers in articulating the new rules for ADR at ICSID. The Secretary-General also highlighted the inevitable challenges of bringing a project of alternative investment dispute resolution to success. Among these challenges, Kinnear pointed to the unique combination of skills expected from an investment dispute mediator or conciliator. Both a deep understanding of investment disputes and their legal framework, and experience and suitability as a mediator will be required from individuals mediating investment disputes. As several contributors also underscored during the conference, States need to form an official position as to whether they are willing to engage in ADR processes. In most cases, this would require implementing changes to domestic regulatory and institutional frameworks which have been designed for invesment arbitrations, and cannot accomodate other forms of investment dispute resolution.

The keynote speech was followed by a discussion between Monty Taylor of Arnold & Porter, Professor Stephan Schill of the University of Amsterdam, Dr Paschalis Paschalidis of Shearman & Sterling and Arne Fuchs of McDermott Will & Emery, moderated by Lord Goldsmith QC. Whilst endorsing the development of alternatives to arbitration, the participants voiced several concerns that put into doubt the feasibility of ADR in the investment dispute resolution context. It was raised whether governmental officials tasked with decision-making in the course of investment dispute mediations can realistically be expected to undertake full responsibility for the outcome of the dispute settlement process. Incentivising both government officials and ultimate political decision-makers to approach ADR processes in an efficient manner was described as a potential hurdle for ADR to succeed as an investment dispute settlement tool. The panelists also discussed whether alternative dispute settlement procedures risk contracting out” of public law structures and accountability mechanisms, and stressed the need for adequate safeguards against corruption tainting the process. The extent to which ADR can substitute (as opposed to complement) investor-State dispute settlement for EU investors was considered doubtful as long as third State investors retain the leverage of potential investment treaty claims against European Governments.

Three further panels addressed alternatives to investment arbitration from various angles throughout the day. The panel discussions were opened by Professor Loukas Mistelis, the Chair of the Executive Board of EFILA, who commented on contours of the emerging new era of investment protection: investment law being potentially submerged in international trade law, and the potential return of contract-based investment disputes. The first panel, chaired by Judge Christopher Vajda of the Court of Justice of the EU, considered investment protection under EU law. Judge Vajda outlined the pertinent case law of the Court of Justice, and explained the Court’s interpration of the scope of the Charter of Fundamental Rights, which is expected to be a potential legal basis for investment claims pursued before courts of Member States in the future. The panelists, Alejandro Garcia of Clyde & Co, Dr. Patricia Nacimiento of Herbert Smith Freehills Germany LLP and Dr. Alexandra Diehl of White & Case addressed the status quo of investment protection post-Achmea. The discussion covered the competing theories on the nature of investor rights and whether the termination of sunset clauses can pre-empt recourse to investment tribunals; the leaked draft of the Plurilateral Agreement” being negotiated by EU Member States with a view to terminating intra-EU investment treaties; and changes required in the system of judicial protection under EU law from the perspective of investment protection.

The second panel of the day, moderated by Professor Nassib G. Ziadé (CEO of the Bahrain Chamber for Dispute Resolution (BCDR- AAA)), focussed on Alternative tools for effective investment/investor protection”. The panel, comprising Mark Appel, Mélida N. Hodgson of Jenner & Block, Eloïse M. Obadia of the International Finance Corporation and Professor Gerard Meijer of Linklaters, discussed in particular the ongoing reform process at ICSID. The central point of the debate, with several contributions from the audience, was how to reconcile the public demand for greater transparency and accountibility in investment dispute settlement with the indispensable confidentiality that mediation or conciliation processes require. A halfway house” approach was considered by the panelists, whereby the fact of the dispute settlement would be public, third party interests would be chanelled into the process, all the while preserving the confidentiality of the proceedings strictly speaking. Echoing the concerns discussed in Meg Kinnear’s keynote speech, the panelists shared the view that awareness and readiness of governments to accomodate ADR at a regulatory level is paramount for ADR to succeed.

The third and final panel discussion of the conference was dedicated to the future of the Energy Charter Treaty and energy investment disputes more broadly. Dr. José Ángel Rueda García of Cuatrecasas presided the panel, with the participation of Robin Rylander of Mannheimer Swartling, Dr. Wojciech Sadowski of KL Gates, Luciana Ricart of Curtis, Mallet-Prevost, Colt & Mosle and Quentin Declève of Van Bael & Bellis. The conversation spanned the overview of pending challenges to ECT awards (specifically SCC awards under challenge before Swedish courts), the ongoing reform of the Energy Charter Treaty (ECT), whether the current system of energy dispute settlement is broken and whether the ECT permits the termination of intra-EU ECT protections. Contributions from the audience triggered further discussion of whether the future regulation of the energy sector, in particular of fossil fuels or nuclear energy, raises public policy concerns analogous to industries where consensus recognises that it is appropriate to afford policy makers and regulators more discretion in interfering with proprietary rights (such as gambling or the tobacco industry).

The conference concluded with Professor Nikos Lavranos, Secretary General of EFILA, and Professor Loukas Mistelis, Chair of the Executive Board of EFILA, thanking the participants for their contributions, announcing the winner of the 2019 EFILA Young Practitioners and Scholars Essay Competition, and inviting submissions for the 2020 round.

Ensuring Equitable Access to All Stakeholders: Critical Suggestions for the MIC (EFILA Submission to the UNCITRAL WG no. 3 on ISDS Reforms)

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 taking stock of the interests of all stakeholders. This is particularly true for the proposal for a Multilateral Investment Court (MIC), which is currently being discussed and negotiated in UNCITRAL Working Group III. Without the active participation of all stakeholders (i.e. all potential users of the MIC) – including investors and their legal counsel – any ISDS system will lack legitimacy.

With this in mind, EFILA submits the following, non-exhaustive suggestions for ISDS reform and, in particular, for the MIC proposal:

The Appointment & Selection of MIC Judges: Central to the ISDS system’s ability to effectively resolve disputes between investors and States is the confidence of all stakeholders in their decision-makers. For this reason, EFILA believes that investors should continue to have a direct and indirect say in the choice of their decision-makers. The MIC should:

  1. Let a college of representatives chosen by the investors, as users of the system, participate in choosing candidates for the MIC;
  2. Give all stakeholders a right to strike out a given number of judges assigned to their panel; and
  3. Allow all stakeholders to retain the right to challenge MIC judges on the basis of clearly defined standards before an independent body.

Consistency of MIC Decisions: EFILA agrees that consistency in legal decisions is an important element of any well-functioning dispute resolution system. Consistency, however, must be objective. It cannot be used as a means to “correct” awards that arrive at unwelcome results. Any responses to consistency must respect the rule of law and the equality of the parties.

Accordingly, any final design of the MIC should:

  1. Not allow joint binding interpretations with potentially retroactive effect;
  2. Avoid unnecessarily reducing the material scope of the standards of investment and investor protection; and
  3. Limit exclusions of certain types of investors, investments and sectors to only to the
    extent objectively and reasonably necessary.

Access To Justice For SMEs: Small and medium sized enterprises (SMEs) are an integral part of the global economy. Any proposed reform of the ISDS system cannot disregard SMEs or discourage them from making full use of the ISDS system. The MIC, therefore, must include structural and systemic solutions that effectively ensure access to the system for SMEs. These include:

  1. Adopting cost-efficient rules that promote access to justice by SMEs;
  2. Establishing a process that informs and educates SMEs about the ISDS system and helps them to assess their claims; and
  3. Creating a financial support system for accessibility to the ISDS system for SMEs.

Enforcement of MIC Decisions: The application of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) to MIC decisions (even if just on an interim basis) raises serious potential obstacles to the enforceability of those decisions. Further thought should be given to ensuring that MIC decisions will be enforceable.

These suggestions, EFILA believes, will encourage confidence from all stakeholders in the MIC system and thus make the MIC a fair dispute settlement system for all users.

The entire document can be found here.

Save the Date: 15 February 2019 – IV Annual Conference of the Belgian Chapter of the CEA – Arbitration and ADR in BIG construction projects of strategic infrastructure

EFILA is proud to announce the IV Annual Conference of the Belgian Chapter of the CEA regarding “Arbitration and ADR in BIG construction projects of strategic infrastructure”.

Brussels, Friday 15th February 2019 – 13:30 to 19:00
Jones Day’s offices – Rue de la Régence 4, 1000 Bruxelles

13:30 Registration of participants


14:00 Welcome remarks
Vanessa Foncke, Jones Day, Brussels
Emilio Paolo Villano, Capítulo Belga del Club Español del Arbitraje, Brussels

14:15 Keynote speech
Nicolas Angelet, Professor at Université Libre de Bruxelles, Brussels

14:45 PANEL 1 – Investment arbitration: where do we stand?
Moderator: Patricia Saiz, Professor at ESADE Law School, Barcelona
Special discussant: Petra Butler, Professor at Victoria University of Wellington, Wellington
§ The Energy Charter Treaty: is the sky cloudy or is it raining already? Antonio Vázquez-Guillén, Allen & Overy, Madrid
§ Intra-EU BITs after Achmea: the EU standpoint – Tim Maxian Rusche, EU Commission, Legal Service, Brussels
§ The Vattenfall case and the concept of legitimate expectations vs freedom to regulate – Ignacio Santabaya, Jones Day, Madrid

16:30 Coffee break


17:00 PANEL 2 – Dispute resolution in big-scale construction projects
Moderator: Alexander Hansebout, Altius, Brussels
§ When the State or a State-owned entity are the procuring entity or the main contractor: issues, concerns, solutions – Monica Feria-Tinta, 20 Essex Street, London
§ Shaping the dispute resolution mechanism within the supply chain: dos and don’ts – Ioana Knoll-Tudor, Jeantet, Paris
§ Before arbitration: DRB, expert adjudication and more – Lindy Patterson QC, 39 Essex Chambers, DRBF Director & President Region 2, London
§ Financing litigation on big construction projects: the TPF insights – Hannah Van Roessel, Omni Bridgeway, Amsterdam
§ Time is of the essence: extra-costs and time extension in big scale projects – Francesco Andreano, Stairwise, Turin
§ The enforcement of arbitral awards against States or State-owned entities – Jacques-Alexandre Genet, Archipel, Paris


19:00 Conclusive remarks
José Antonio Caínzos Fernández, Honorary President of the CEA, Partner at Clifford Chance, Madrid


19:20 Cocktail reception

This event has been granted 4 CLE Credits by the Ordre des Barreaux Francophones et Germanophone de Bruxelles and the Nederlandse Orde van Advocaten bij de Balie te Brussel .

Registrations on a “First come – First Served” basis at: administracion@clubarbitraje.com

EFILA 2019 Annual Conference: The EU and the future of international investment law and arbitration

Description

4th Annual EFILA Conference

The EU and the future of international investment law and arbitration

With the entering into force of the Lisbon Treaty 10 years ago the EU has become a dynamic policy actor in international investment law and arbitration. In particular, within the context of the increasing public concerns against TTIP, BITs and ISDS, the European Commission has been active in “reforming” and “reshaping” the investment law and arbitration landscape, for example with the EU-Singapore and EU-Vietnam FTAs, which contain many “innovative” features such as the investment court system (ICS). Another area in which the increasing influence and interaction between investment law and EU law is particularly visible is the Energy Charter Treaty (ECT).

The 2019 Annual Conference will take stock of these developments by discussing the EU’s external investment policy generally, by focusing specifically on the EU’s approach towards Asia and by analysing the EU’s impact on the ECT. In addition, a high profile key-note speaker will address the Conference.

As was the case in the previous very successful Annual EFILA Conferences, this Conference will again showcase many distinguished and experienced scholars and practitioners in the area of investment law and arbitration. As always, the Conference will be very interactive and allow for sufficient time for discussion between the speakers and the audience.

Click here for the detail draft programme.

Tickets can be purchased here: https://www.eventbrite.co.uk/e/the-eu-and-the-future-of-international-investment-law-and-arbitration-tickets-48123937994

Date And Time

Thu, 31 January 2019

09:00 – 18:00 GMT

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Location

Herbert Smith Freehills London

Exchange House, Primrose St

London

EC2A 2EG

United Kingdom

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Report on the 4th Annual EFILA Lecture delivered by Prof. George A. Bermann (Columbia University New York, School of Law), Brussels 25 October 2018

by Adam Marios Paschalidis (NautaDutilh)

Recalibrating the European Union – International Arbitration Interface

Introduction

The 2018 Annual EFILA Lecture by Prof. George A. Bermann (Columbia University School of Law), continues the successful Annual EFILA Lectures series, which were previously delivered by Sophie Nappert (2015), Johnny Veeder (2016) and Sir Christopher Greenwood (2017).

Before giving the floor to Prof. Bermann, Prof. Dr. Lavranos, Secretary General of EFILA set the scene of the Lecture by referring to the EU’s recent trend of re-considering the inclusion of the investment court system (ICS) in its FTAs. While the ICS has been included in EU-Singapore FTA, EU-Vietnam FTA, EU-Mexico FTA and CETA, this is not the case anymore in EU-Japan FTA, and neither is it on the table for the EU-Australia and New Zealand FTAs, whose negotiation phase started after the CJEU’s Opinion on the EU-Singapore FTA in which the CEJU determined that the competence on investor-state dispute settlement (ISDS) provisions is mixed. He, also, referred briefly to the Vattenfall arbitral tribunal on the Achmea issue and predicted that the ECT-related disputes will be the next theatre to watch in the upcoming years.

By way of introduction, Prof. Bermann considered as a fact that there is little new to be said with regard to the EU law-International Arbitration interface, since a lot of ink has already been spilled on this subject. Furthermore, he clarified that the purpose of his speech is to trigger a constructive discussion through the identification of some EU policy features that, if “revisited”, would promote a better relationship between the two regimes. Moreover, he expressed that the relationship between EU law and International Investment Arbitration is experiencing the most dramatic confrontation amongst other legal order’s interactions. In that regard, he further added that, despite the considerable level of fragmentation, different legal orders seldom collide on such a considerable level.

The Lecture was divided primarily in three parts. Firstly, he referred to the initial stages of European law and its rather scattered interaction with international (private) law. He then proceeded with the main part of his Lecture. In that respect, by eloquently addressing the different phases Community law has undergone, he identified three particular features of EU policy, which have affected the interaction between the European and Investment Arbitration legal framework. At the end of his Lecture, he shared his opinion concerning the future image of the ISDS regime and how EU law can be “refurbished” in parallel to the already accelerated re-examination of the ISDS regime.

Initial stages of EU law and its interaction with international (private) law

Prof. Bermann noted that at first EU law and international private law, especially international arbitration, were experiencing a status of “peaceful co-existence”, as early European law was exclusively focused on regulating the Union’s internal matters. As such, both European Treatises, the European Common Commercial Policy, the European Common Agricultural Policy, the European Common Fisheries Policy and so forth were adopted primarily for internal consumption. The result of this “introversion” was that legal instruments, which were also addressing some “external” aspects of the Union’s law, for instance private law affairs, were adopted outside the EU structures and in the form of conventions, such as the Brussels and Rome Conventions. At this point, Prof. Bermann made specific reference to the absolute exclusion of international arbitration from the content of the above mentioned conventions.

However, since the signing of the Amsterdam Treaty a dramatic shift has become evident. Amongst many other reforms, the regulation of private international law became part of the European Community column. As such, the European Union realised a wider role on that field, driven perhaps by its will to achieve a higher level of federalisation. Therefore, European legal instruments began to deal with private international law affairs as the European Commission was gaining more and more competence to address them. Unsurprisingly enough, the Court of Justice of the EU (CJEU) could not remain silent in light of this wave of “extroversion” and started assuming exclusive jurisdiction in a variety of cases. Both of the abovementioned escalations placed European law, as Prof. Bermann illustratively put it, in orbit of collision with international private law, especially international investment law. At this point, it should be mentioned that Prof. Bermann referred to the rise of ISDS arbitration and leading to a quantum shift as an additional crucial factor for the tension amongst the two regimes. Once again, however, he stressed that the purpose of his Lecture was to identify the changes that took place on the EU’s side of the equation.

EU law changes and their impact in investment arbitration

Prof. Bermann underlined three EU law features that have evolved or have been “invented”, thus influencing its correlation with International Investment Arbitration. However, before presenting them he pointed out that the impact of the first two is relatively limited in comparison to the third one.

First of all, European legal instruments initiated by the European Commission assumed wider roles and attempted to regulate fields of law, that fell under the Member States competence at the first stages of the Union. New legal instruments concerning private and commercial relationships were adopted, thus placing EU law, which would arise previously primarily as a defence in arbitral proceedings, in orbit of collision with international commercial arbitration.

As a second EU law feature that contributed to the prospective/already existing confrontation of the EU legal order with investment arbitration, Prof. Bermann specifically referred to the notion of the private enforcement of EU competition law. Stemming primarily from the CJEU judgment in the EcoSwiss case, this special element of EU law could provide a domestic court with the power to place an arbitral award under a special scrutiny regime, and even reject its enforcement on European public policy grounds. In that respect, two facts are of particular interest. First, he referred to the undefined level of review (deferential or non-deferential) that a domestic court can exercise. Second, he was concerned with the possibility of this ground being investigated by a domestic court on its own motion, irrespective of a party’s previously raised objection. Moreover, Prof. Bermann took his thoughts one step further and directed the audience’s attention to the fact that the precise rationale of the EcoSwiss decision could be utilized by the CJEU in different legal contexts and relationships as well.

Before resuming with the identification of the third EU policy feature, Prof. Bermann concluded that both aforementioned features provided the appropriate fuel for a new EU norm to arise, namely, that of European public policy. He even expressed his concern with regard to the implications European public policy will have in the substantive level of the EU law-International Investment Arbitration interface.

With the aforementioned last consideration, Prof. Bermann proceeded to the third European law element, that according to him affects the interaction between EU law and International Investment Arbitration the most. Prof. Bermann noticed that the concept of “autonomy of EU law” constitutes a rather recent trend in CJEU’s decisions. As found in some of the Court’s Opinions, including the Opinion 2/13 on the EU’s accession to the ECHR and in the Achmea case as well, it seems that the CJEU reserves its right to interpret EU law. In fact, not only does it reserve it, but it also assumes a monopoly in applying it. According to Prof. Bermann, the origin of the “EU law’s autonomy” concept can be traced back to the notion of the EU law’s primacy over the domestic law of the Member-States, as the CJEU held already found in Van Gend en Loos and Costa v. ENEL.

However, Prof. Bermann considered that there is a significant gap between these two EU law concepts (autonomy of EU law and primacy of EU law). On the one hand, the legal norm of “primacy” is expected to operate in intra-EU conflicts of law. On the other hand, the “autonomy of EU law” has been invented in order to interact with the international legal order. As it was articulated in its series of Opinions, the CJEU stands in opposition to any EU’s accession in international treaties that establish a Court or Tribunal whose decisions have an “adverse effect on the autonomy of the EU’s legal order”. In that regard, Prof. Bermann was astonished to note there is no other legal order that purports to disallow foreign courts to interpret its law.

In addition, Prof. Bermann invited the audience to “see” the bigger picture. As such, he remarked that the concept of EU law’s autonomy is expected to create turbulence and confusion concerning the EU’s and its Member States’ international legal standing. Obviously, such a monopoly of interpretation can be abused by the CJEU to form a potential rejection of a claim against the EU or one of its Member States. Even worse, the CJEU could force a domestic court not to enforce a decision or award that stands in contradiction with any part of the EU’s superior legal framework. However, Prof. Bermann did also refer to attempts to moderate/limit the concept of autonomy of EU law with respect to CETA and the ICS system contained therein, which, however, awaits approval by the CJEU in Opinion 1/17.

Furthermore, Prof. Bermann accepted that there is a fundamental difference between the CJEU’s Opinions and its Decisions. The Court’s Opinions, such as Opinion 2/13, were asked in order to predict incompatibilities between two separate legal regimes before signature. On the other hand, the Court’s Decisions like Achmea touched upon a Treaty’s validity after having been signed. As such, the Achmea decision “condemned” a Treaty and “dishonoured” an award, creating a considerable level of precedence. Additionally, Prof. Bermann considered that, although the Court in Achmea reassured the validity of investment treaties like the ECT or the CETA, it made clear that it reserves the exclusive right to interpret EU law.

Last but not least, Prof. Bermann could not help but notice the possible startling outcome of the combination of the CJEU’s monopoly of interpretation with the notion of EU public policy. In that regard, he referred to the Micula case, where the CJEU considered the domestic court’s level of scrutiny as insufficient. As such, the CJEU gave a substantive law dimension to the level of control, which a domestic court should exert when confronted with the recognition and enforcement of an arbitral award. Prof. Bermann took his consideration a step further and “painted” a realistic picture of the CJEU’s demands from a domestic court to reject the enforcement of a decision against the EU itself on public policy grounds.

Future image of Investor-State Dispute Settlement (ISDS)

Taking a third person’s sight in respect of European political and legal dynamics, Prof. Bermann specifically mentioned the need for the ISDS system to be re-examined in its entirety. Being a member of the Gabrielle Kaufmann Kohler academic forum, which has been created in the context of the UNCITRAL Working Group on ISDS reforms, Prof. Bermann called for a reconsideration of the basic features of investment arbitration, as this will prove useful in its interaction with EU law as well. At the same time he also referred to the possible steps, which the EU institutions and EU law could take in order to optimize its interaction with international investment arbitration. As such, a clearer delineation and clarification of the aforementioned EU law concepts, such as “European public policy”, “EU law autonomy” and the extent of an arbitral award’s substantial review by domestic courts could be helpful. Last but not least, Prof. Bermann made specific reference to the potential use of the CJEU’s “proportionality” principle in the “re-calibration” of the EU law-Investment Arbitration law relationship. He also expressed his discomfort of the absence of a constructive dialogue between EU institutions and International Arbitration institutions.

 

Q&A session moderated by Mr Kamil Zawicki (KKG)

The following four points of discussion formed the core of the Q&A session.

First, a comment was raised with regard to the relationship between CJEU’s Opinions and post treaty decisions/judgments. It was stated that there is a considerable difference between the two. The first has to do with a matter that may raise concerns in the future and are non-binding, whereas the Court’s decisions/judgments deal with a specific case and provide a solution based on the facts of the case. On this point, Prof. Bermann argued that CJEU’s Opinions are quite abstract and cannot anticipate which points of concern will arise at a later stage. They represent a special kind of precedent and are rarely not followed by the EU’s organs, despite the fact of not being binding. As for the Court’s decisions/judgments, he stated that they refer quite often to generic norms, although they deal with the particular facts of the case at hand.

Second, a question was raised concerning what  possible considerations an arbitrator is forced to make when sitting in ICSID arbitration proceedings, which take place in an EU Member State. Prof. Bermann replied that firstly an arbitrator should take  into consideration  his/her mandate to deliver an enforceable award. Secondly, he noted, in response to another point raised, that the interpretation of the Achmea case should be the same under intra-EU BITs, the ECT and the ICSID contexts. However, Prof. Bermann made a comment of significant value with regard to this question. He stated that even an award delivered in a seat of arbitration located outside the EU, such an award could still be annulled or not enforced for reasons of comity.

Third, a significant difference between the EcoSwiss case and the Achmea case was underlined. It was mentioned that in EcoSwiss the CJEU forced the Dutch courts to annul the arbitral award at hand. On the other hand, in Achmea the CJEU found that the arbitration clause was incompatible with the EU law, thus leaving more space for the domestic court’s deliberation. Prof. Bermann acknowledged the point raised, but he then turned the discussion on the EU law dynamics. Therefore, a domestic court cannot do much when confronted with the notion of EU law’s supremacy over domestic law. At this point, Prof. Lavranos added that indeed there is no room left to a domestic court to decide otherwise. Prof. Lavranos, also, referred to the need for widening the preliminary ruling system. In that respect, he expressed that it is of utmost importance that arbitral tribunals are provided with the right to request a preliminary ruling from the CJEU in case EU law is at issue. According to him, this crucial step would simplify the current situation in terms of consistency and predictability.

Fourth, a rather crucial remark was raised in respect of a very interesting feature of the Achmea case. In that regard, it was mentioned the Achmea case dealt primarily with the preliminary question of the presence or absence of the State’s relevant consent. The CJEU based its interpretation on the fact that the Member States compromised a part of their sovereignty by signing the Lisbon Treaty. Therefore, the CJEU can invoke the “supreme” instruments of EU law in order to determine the element of consent. At this point of the session, a debate took place with regard to the interpretation of Art. 54 ICSID “as it if were a final judgment of the courts of a constituent state”. It was mentioned by the audience that Art. 54 ICSID does not prevent a State from not enforcing an award on one of the grounds for annulment under ICSID or the ones for refusal of enforcement under the New York Convention. Prof. Bermann responded to the second point by mentioning that this depends on a particular State’s reading of the provision and exemplified his position by referring to the US framework concerning ICSID awards under which this kind of decisions are immune.

As far as the interpretation of a consent’s validity and its co-relation with EU law is concerned, Prof. Bermann made the following remarks. He firstly admitted that the supremacy of the EU law is a norm that should be taken into consideration when discussing the interaction of the EU’s and its Member States’ legal frameworks. However, when the concept of “supremacy” transforms into the one of “autonomy” and is used against the international legal order, problems as the one in the Micula case will arise. He further supported his opinion by inviting the audience to adopt a broader view beyond intra-EU BITs and imagine how an individual would investigate the existence of a consent from an international law perspective, by making reference to the Vienna Convention and its relevant provisions. As a last point, Prof. Bermann subscribed that a State is still considered a subject of international law, despite being a member of the EU.

Call for Contributions – EFILA Blog

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Given the present debate – on both sides of the Atlantic (and beyond) – surrounding the future of ISDS and bilateral investment treaties, the EFILA Blog editorial board believes that a veritable dialogue must take place, allowing all arguments to be heard and all diverging positions to be defended. Discussing the status of an international regime should take place at the very center of the legal community itself and not be left as a mere political bargaining chip.

For these reasons, EFILA offers its Blog as a space for open dialogue, welcoming any contribution that pertains to the field of of international (investment) law and arbitration, EU law and public policy, as well as the dynamics of these multiple legal, political and economic spheres. Moreover, the new impetus of signing regional free trade agreements in Asia-Pacific is of utmost interest for the existing dialogue, showing how other parts of the world advance their investment cooperation despite this troubled global background.

If you are interested in submitting any material to the EFILA Blog, please contact our Managing Editor, Horia Ciurtin, at the following e-mail address: h.ciurtin@efila.org

EFILA Investment Treaty Arbitration Academy 2017: 17-22 July (Rotterdam)

The EFILA Investment Treaty Arbitration Academy is designed to provide in-depth knowledge on all relevant aspects of investment treaty arbitration.

The Academy is specifically designed for Government officials and practitioners who already have some knowledge of and experience with investment treaty arbitration law. Highly-qualified post-graduate students and Ph.D. candidates with prior specialization in international investment law may also be considered.

The Academy’s 2017 Session will run from Monday, 17 July 2017 until Saturday, 22 July 2017, afternoon.

The Program

  • Introduction into investment treaty arbitration
  • Procedural aspects of investment treaty arbitration
  • Enforcement and recognition of awards
  • The impact of EU law on investment law and arbitration
  • Contemporary issues of investment law and arbitration
  • Mock Arbitration

The Lecturers

  • Gloria Alvarez, University of Aberdeen
  • Andrew Canon, Herbert Smith Freehills
  • Lukasz Gorywoda, VVGB Advocaten
  • Veronika Korom, Bredin Prat
  • Nikos Lavranos, EFILA, NL-investmentconsulting
  • Gerard Meijer, NautaDutilh
  • Loukas Mistelis, Queen Mary University of London

 

Admission requirements

  • Applicants must have completed a degree in law, economics or political science, preferably supplemented by post-graduate degrees (LLM, Ph.D.).
  • Applicants should preferably possess at least one year of professional experience in investment treaty arbitration or a related field (lawyer, diplomat, export industry representative, trade economist, civil servant, etc.). Exceptions to this rule may be granted upon reviewing individual applications.
  • Applicants must demonstrate outstanding academic ability and provide credible references bearing witness to their professional abilities.
  • Applicants are expected to have a strong command of English (both oral and written) and should be ready to read a large amount of material in English both prior to and during the Academy.

Application

To apply, please submit all your supporting documents as one PDF file, except the photo, in the following order:

  • the 2017 EFILA Academy Application form DEF1
  • an up-to-date Curriculum Vitae.
  • a personal statement explaining your interest in the program (max. 1 page, typewritten, in English).
  • certified copies of diplomas and transcripts (accompanied by a translation in English, if necessary).
  • proof of strong command of English language (e.g. TOEFL or EELTS test results) should be provided.
  • If you are a post-graduate student or Ph.D. candidate and wish to enjoy the special fee: a proof of enrolment from your university in 2017 is required.
  • If you are a Government official or employee of an International Organization and wish to enjoy of the special fee: a document certifying your current affiliation is required.
  • a colour photograph in JPG file format with a resolution of 120 KB minimum, should be added separately.

These documents must be submitted to: EFILAAcademy@gmail.com

With the exception of the photograph, all materials submitted must be included in one single PDF document.

The deadline for submitting your application is 1 June 2017. The Selection Committee will base its decision on the fulfilment of the admission criteria and the documents submitted along with the application.

Applicants will be notified of the Selection Committee’s decision regarding their application by 19 June 2017.

Upon receipt of the notification of acceptance, applicants are encouraged to immediately begin their hotel and travel arrangements as well as any necessary visa applications.

Participation of the Academy Session depends on prior payment of the tuition fee, which must be received by the Academy before 3 July 2017.

Registration fees

The tuition amounts to EUR 1,000,- for applicants affiliated with a university, with a Government or International Organization (subject to providing proof), and EUR 1,500 for practitioners.

Cancellation policy

Cancellations prior to 23 June 2017 are free.

Cancellations after 23 June 2017 will entail the payment of 50% of the applicable registration fee, i.e., EUR 500,- or EUR 750,- respectively.

Cancellations after 3 July will entail the payment of 100% of the applicable registration fee, i.e., EUR 1000,- or EUR 1,500,- respectively.

Attendance

Participants admitted to attend the 2017 Arbitration Academy will be expected to attend all lecturers and the final mock arbitration in their entirety. All participants will be assessed (and a receive passing grade). Upon successful completion of the whole Session, participants will receive a Certificate of Attendance. However, if an Academy participant is absent for one or more lectures without acceptable justification, he/she will be precluded from receiving a Certificate of Participation at the end of the Session. All participants should evaluate the

Website

Applicants admitted to attend the program consent to have their photograph and curriculum vitae posted on the Academy’s website. In addition, all participants in the Academy’s 2017 Session consent to have photos or videos taken during the course of the program published on the Academy’s website.

Practical Information

  • Accommodation

The EFILA Academy does not provide for any travel or accommodation.

Participants are required to make all the necessary travel and accommodation arrangements themselves, as well as any necessary visa application.

  • Location

All Academy Lectures will take place at the offices of Nauta Dutilh in Rotterdam.

The address is: Weena 800, 3014 DA Rotterdam:

https://www.nautadutilh.com/en/our-firm/offices/rotterdam/

The NautaDutilh office is located directly at the Rotterdam central station.

Rotterdam can be easily reached with international trains as well as by air via the Rotterdam-The Hague airport and Schiphol airport Amsterdam.

  • Programme

The precise programme will be provided in advance of the Session to all admitted participants.

Up-dated information about the programme will also be published on the EFILA website:

http://efila.org/home/efila-academy/

  • Dress Code

Casual business attire during the Lectures. However, please note that formal business attire is required for the mock arbitration.

  • Language

All Lectures will be taught in English.

  • Contact

For further information, please contact Prof. Dr. Nikos Lavranos, LLM, Secretary General of EFILA at: n.lavranos@efila.org

Norton Rose Fulbright and EFILA: Investor-State Disputes, What Will Change Post-Brexit?

by Cara Dowling, Norton Rose Fulbright (London)*

On Wednesday 29th March 2017, the UK government triggered Article 50 formally beginning the process of withdrawing the UK from the European Union. On that historic day, the London office of Norton Rose Fulbright and EFILA co-hosted a panel discussion with distinguished experts from industry, trade policy and investment treaty arbitration to discuss the impact of Brexit.

Deborah Ruff, international arbitration Partner at Norton Rose Fulbright chaired the discussion, which centred on such topics as what would change post-Brexit for trade, foreign direct investment and investor-state dispute settlement. The panel was comprised of Chris Southworth, Secretary General of the ICC UK, Norah Gallagher, Academic Director, Energy and Natural Resources Law Institute and EFILA board member, Ali Malek QC of 3 Verulam Buildings, and Milagros Miranda Rojas, special advisor on WTO and International Trade, Norton Rose Fulbright.

The evening quickly turned into a lively and engaged discussion amongst the panellists each of whom offered a unique perspective on the impact of Brexit from their respective fields of expertise. Members of the audience, many of whom hailed from different European countries and/or represented companies with a global or pan-European footprint, also passionately engaged with the panel, offering their own thoughts on both the issues and possible outcomes.

There was a general consensus that negotiating Brexit and future trade deals between the EU and UK would be complex not least because negotiating positions will be influenced by factors beyond simple economic considerations. The mood however was generally positive with all expressing a hope for constructive discourse leading to a trade agreement or at least an investment agreement providing states and foreign direct investors with effective dispute resolution mechanisms.

The session was, somewhat reluctantly, brought to a close, allowing panel members and guests to enthusiastically continue the conversation and debate over networking drinks on Norton Rose Fulbright’s terrace overlooking Tower Bridge. Thank you to all who participated in this thought-provoking evening.


Cara Dowling, Senior knowledge lawyer, Norton Rose Fulbright, London

Norton Rose Fulbright and EFILA: Investor-state disputes, what will change post Brexit?

Norton Rose Fulbright and EFILA invite you to attend a panel discussion on trade, foreign investment and investor-state dispute settlement post-Brexit.

Panel discussion and drinks reception

We are pleased to host an distinguished panel of experts from industry, trade policy and investment treaty arbitration.

Topics our panel will cover include:

  • The UK’s post-Brexit relationship with the EU and non-EU countries
  • The fate of intra-EU bilateral investment treaties (BITs)
  • Trade and foreign investment protections (inward and outward bound investment)
  • Investor-state dispute settlement procedures
  • The EU’s proposed International Court System (ICS)

Speakers include:

  • Deborah Ruff, Partner, Norton Rose Fulbright
  • Chris Southworth, Secretary General, ICC UK
  • Ali Malek QC, 3 Verulam Buildings
  • Norah Gallagher, Academic Director, Energy and Natural Resources Law Institute, EFILA Advisory Board

Places for this session are limited and will be allocated on a first come first served basis. If you would like to attend please RSVP here.

Date:

Wednesday, 29 March 2017

Time:

Registration: 6:00pm

Event start: 6:30pm

Drinks & canapes: 7:30pm

Where:

3 More London Riverside

London, SE1 2AQ

United Kingdom

Announcement: EILA Review first issue

EFILA is proud to announce the upcoming publication of the first issue of the newly created European International Law and Arbitration Review, which is published together with Queen Mary University of London.

This Review is the first legal journal focusing specifically on European investment law and Arbitration as a new field of law.

This issue features a broad range of interesting and innovative articles written by a mix of young and seasoned scholars and practitioners.
Further information on the table of contents and ordering of the Review can be found here.