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Adjudicating Trade and Investment Disputes
A multi-disciplinary, multi-author analysis of convergence and divergence between trade and international dispute settlement.
Country Report on Hungary and Romania
Romania does not yet have a separate law regulating the screening of foreign investments. Therefore, it is difficult to argue that the 2011 amendment to Romania's Competition Law, which allows the blocking of a takeover for national security reasons, can be considered an investment screening mechanism under EU Regulation 2019/452. If it can be considered as such, then the summary procedures described in the Competition Law fall short of the requirements of the EU Regulation. Compared to Romania, Hungary has very recently adopted Law LVII of 2018 and Government Decree 246/2018, which set up a detailed investment screening mechanism for national security reasons, in sensitive economic sectors. The Hungarian mechanism is mostly in line with the Regulation's mandatory minimum requirements. They only fall short when it comes to better detailing some of the grounds based on which non-EU, non-EEA, or non-Swiss foreign investors can have their investments blocked, and they do not include provisions on the protection of sensitive information. It is to be seen how effective the Hungarian mechanism becomes, as a number of foreign investors will be affected by it.
Between Fiction and Reality. The External Autonomy of EU Law as a 'Shapeshifter' After Opinion 1/17
Academics often get caught up in analysing every minute legal technicality in the Court of Justice's assessment of a foreign dispute settlement mechanism (DSM)'s compatibility with EU law and its autonomy. This is not surprising as the compatibility assessment in essence is a constitutionality check with great ramifications. Instead of this approach, this article invites academics and practitioners alike to view autonomy as a 'shapeshifter'. Just like the 'direct effect' of international law in the EU legal order, 'external autonomy' will morph into a shield that protects EU law from international law or it will become an embracer of international law and international DSMs. The shapeshifting will in part depend on the extent to which non-legal considerations inform the Court's strict or narrow approaches to the compatibility assessment. The Court achieves this with the help of different techniques, such as the reliance on various hypotheses and fictions, and the summary treatment of certain issues that might be crucial to the assessment.
The EU's Cumbersome Investment Law and Policy, and Its Effects on the Protection of Intellectual Property Rights
The extension of the EU's exclusive competences over foreign direct investment, instead of being a smooth operation meant to streamline the investment policies of the Member States into one common EU investment policy, has turned into an arduous process of legal and political hurdles. The purpose of this Chapter is to explain the ways in which the EU's cumbersome investment law and policy can affect the protection of the Intellectual Property (IP) rights of EU investors abroad, by focusing on the following core issues: (a) the fate of Member State bilateral investment treaties (BITs) with third countries following the Lisbon amendments; (b) the conclusion of new EU trade and investment agreements; (c) the compatibility of intra-EU BITs with EU Law; and (d) the compatibility between the Investment Court System and investment tribunals under Member State BITs with third countries and EU law.
Why Do Or Should Foreign Investors Resort to the Courts of the Host Country Prior to Investment Treaty Arbitration? A Study of Two Transitional and Two Well-Established Judiciaries
The justification that ITA ensures that investor-State disputes are denationalized has received less empirical attention. Investment law literature has mainly focused on the purpose of ITA for bypassing domestic courts, on 'fork-in-the-road' (FITR) clauses, and on introducing an exhaustion of local remedies requirement. Empirical studies that concern the role of domestic courts in IIL have mainly focused on the post-award phase, more specifically on issues surrounding the domestic enforcement and setting aside of international arbitral awards. This chapter, however, departs from these approaches and asks a novel question, which to my knowledge has yet to be discussed in an empirical way in legal academia: Why do or should investors resort to the courts of the host country prior to investment treaty arbitration (ITA)?
YSEC Yearbook of Socio-Economic Constitutions 2022
Funding of justice has significant consequences for the enforcement of rights and impacts directly on access to justice and the right to a fair trial as constitutional rights. Access to justice in turn essentially impacts on the effective enjoyment of any other constitutional right, since having the actual means to access a court in case of a potential breach strengthens that right. Public funding, such as legal aid, has come under pressure due to the reality of financial austerity measures and the tightening public budgets in many countries. This has contributed to privatization and marketisation of funding in ever more jurisdictions. Private forms of funding include inter alia litigation i...
The EU and the Rule of Law in International Economic Relations
This timely book explores the complexities of the EU’s international economic relations in the context of its commitment to the rule of law both within the Union and internationally. Bringing together diverse perspectives from both EU and international law scholars and practitioners, the book investigates some of the most controversial and lively issues in the field of EU external relations and the relationship between EU law and international law.
YSEC Yearbook of Socio-Economic Constitutions 2020
This book presents the very first, interdisciplinarily grounded, comprehensive appraisal of a future “Common European Law on Investment Screening”. Thereby, it provides a foundation for a European administrative law framework for investment screening by setting out viable solutions and evaluating their pros and cons. Daimler, the harbour terminal in Zeebrugge, or Saxo Bank are only three recent examples of controversially discussed company takeovers in Europe. The “elephant in the room” is China and its “Belt and Road Initiative”. The political will in Europe is growing to more actively control investments flowing into the EU. The current regulatory initiatives raise several fund...
EU Law and International Investment Arbitration
EU Law and International Investment Arbitration thoroughly examines the compatibility of ISDS provisions in extra-EU BITs and the Energy Charter Treaty with the autonomy of EU law, and is a must read for all magistrates and investment practitioners involved in investment arbitrations in or with the EU, as well as for academics interested in the participation of the EU to international dispute resolution or the constitutional construction of the EU judicial system.
