Investor-State Arbitration Tribunals

Page 2 of 21

Filter category

Feature post image

Belgium asks European Court of Justice to opine on compatibility of Energy Charter Treaty’s investor-State arbitration provisions with EU law

On 3 December 2020, the Government of Belgium announced that it was submitting a request to the Court of Justice of the European Union for an opinion on ‘the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties.’ This is major news, potentially sounding the death knell for the settlement of intra-EU investor-State disputes through treaty arbitration. The arbitration of investor-State disputes under intra-EU BITs was held incompatible with EU law by the CJEU in its 2018 Achmea judgment. The Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union adopted by 23 Member States in May this year seeks to terminate the remaining intra-EU BITs and their ‘sunset clauses’, as well as to prevent investors in pending and new arbitration proceedings from relying on their protections. The ECT, to which the EU and all its Member States bar one (Italy having withdrawn from the Treaty at the beginning of 2016) are parties,…

Read more

To CETA or not to CETA: Reflections on ISDS and the special responsibility of national parliaments

In a reaction to an EJIL: Talk! post by Baetens et al., Arcuri et al. claim that the Dutch parliament has the right to reject CETA and also argue in favour of it doing so. The post by Arcuri et al. raises important points that merit further discussion, among legal academics and practitioners, politicians, and citizens.

Read more

Expropriating democracy: on the right and legitimacy of not ratifying CETA

In May 2020, the unwinding saga in CETA’s ratification landed in a divided Dutch Senate. The date of the decisive vote in the Senate is dependent on the government’s response to questions raised by senators. Academics have suggested that the Netherlands should ratify CETA because not doing so ‘would be a very negative signal’ ‘in today’s crumbling…

Read more

UNCITRAL and ISDS Reform (Online): Can You Hear Me Now?

‘Can you hear me now?’ is a question that the delegates of Working Group III asked each other often last week, as negotiations on ISDS reform continued but were, for the first time, online. Moving online means that negotiators are also facing many other new questions. How do you keep momentum going? Does moving online mean more governments and…

Read more

Uses and abuses of authentic interpretations of international investment agreements: Reflections on the role of arbitral tribunals as masters of the judicial function

In their previous posts, Catharine Titi and Tarcisio Gazzini discussed some general aspects concerning authentic (joint) interpretations of international investment agreements. They brilliantly clarified aspects concerning the timing of joint interpretations as well as the murky difference between interpretations and amendments of investment treaties. This post will not delve into what was already explained by my…

Read more