5,045 research outputs found
EU External Action in International Economic Law and the Challenges Posed by the EU’s Hybrid Nature
No full textThis chapter introduces the topic of the book. It emphasises how radically the field has changed in the last few years, and the subsequent need of a study that takes stock of the new trends and developments. It highlights that the EU external action in international economic law has been driven by a commitment to promote the rules-based trade both bilaterally and multilaterally at a time during which the international trade regime is threatened by unprecedented challenges
To be or not to be (a terrorist). Understanding the interplay between EU anti-terrorism legislation and international humanitarian law in light of recent EU case law
No full textThe relationship between International Humanitarian Law (IHL) and European Union legislation on anti-terrorism remains to be fully settled by the Court of Justice of the European Union. In particular, the application of EU anti-terrorism measures to non-State actors that are involved in an armed conflict has given rise to controversy. According to a strict interpretation of the principle of lex specialis, IHL should be regarded as the only set of rules governing the conduct of hostilities. The imposition of economic sanctions against a party to an armed conflict would therefore be incompatible with the said principle. In its LTTE judgment issued in 2014, the General Court rejected this interpretation and decided to uphold the sanctions despite finding that the entity subject to them was involved in an armed conflict. In its recent ruling, A. and Others, the CJEU confirmed the findings of the General Court. This article welcomes the CJEU’s decision insofar as it reaffirmed the distinct purpose of Framework Decisions and Common Positions as separate legal instruments, and the lex specialis relationship of the latter with IHL. Although the CJEU affirms - albeit only indirectly - that IHL is indeed lex specialis in the context of armed conflict, it qualifies that position. The author analyses such qualification, concluding that IHL can only be applied as lex specialis to situations of armed conflict if there is a conflict of norms between anti-terrorism sanctions prescribed by European Union law and IHL itself
The Participation of the EU in International Dispute Settlement. Lessons from EU Investment Agreements
No full textThe topic of this book is the participation of the EU in international dispute settlement. It aims to provide the reader with an appraisal of the most problematic aspects connected with the participation of a sui generis legal subject such as the EU to international dispute settlement mechanisms in a State-centric international law. In particular, the book dwells on the question of how to make possible an effective participation in disputes while at the same time preserving the specific characteristics (i.e. the autonomy) of the EU legal order. It does so by outlining different models and proposing the internalization model adopted under EU investment agreements as a possible paradigm.The topic of this book is the participation of the EU in international dispute settlement. It aims to provide the reader with an appraisal of the most problematic aspects connected with the participation of a sui generis legal subject such as the EU to international dispute settlement mechanisms in a State-centric international law. In particular, the book dwells on the question of how to make possible an effective participation in disputes while at the same time preserving the specific characteristics (i.e. the autonomy) of the EU legal order. It does so by outlining different models and proposing the internalization model adopted under EU investment agreements as a possible paradigm
Secondo l’avvocato generale Yves Bot, il meccanismo di risoluzione delle controversie in materia di investimenti istituito dal CETA è compatibile con il diritto dell’Unione
No full textCon le (tanto) attese conclusioni presentate il 29 gennaio 2019, l’avvocato generale Yves Bot ha proposto alla Corte di giustizia di formulare un parere positivo in merito alla compatibilità del mecca- nismo di risoluzione delle controversie tra investitore e Stato (di se- guito ‘ICS’, dall’acronimo inglese Investment Court System con cui è conosciuto) istituito dall’accordo economico e commerciale globale firmato dall’Unione europea e i suoi Stati membri, da un lato, e dal Canada, dall’altro (c.d. CETA). La presente nota esamina le motivazioni addotte dall'avvocato generale a sostegno delle proprie conclusioni
Respondent Status and Allocation of International Responsibility Under EU Investment Agreements
No full textThe academic debate on the international responsibility of the EU has flourished in re- cent years. Much ink has been spilled on the purported unsuitability to the EU of the rules on the responsibility of international organisations as codified by the International Law Commission (ILC). These rules are often criticised for having failed to take into due account the specific characteristics of a sui generis legal actor such as the EU. This friction becomes particularly acute when the EU and the Member States enter into an international agreement that includes a dispute settlement mechanism (IDS). In order to settle a dispute, an IDS would have to decide who acts as respondent and, as a consequence, bears international responsibility. Such decision may, in turn, directly or indirectly affect the autonomy of the EU legal order as defined by the case-law of the European Court of Justice over the years. For this reason, the EU has been attempting to devise tailor-made solutions aimed at preventing that an IDS established by an agreement to which it is a party along- side its Member States may make decisions on questions that would endanger the said autonomy. The aim of this article is to analyse the mechanism concerning the determination of the respond- ent party laid down in EU investment agreements (IAs) for the settlement of Investor-State dis- putes. It is argued that such determination amounts to an implicit acknowledgment of the interna- tional responsibility vis-à-vis the claimant on the part of the designated party. Furthermore, the ar- ticle points out that EU IAs, with their internalisation of issues concerning international responsibil- ity, seem to represent an excellent illustration of how IDS to which the EU is a party should be de- vised, and that the solution therein adopted should become EU’s standard position when it comes to participating to IDS. To this end, the development of a constant and consistent practice may eventually give rise to the long-awaited “special rule” of International Law
The future of investment arbitration in the light of Opinion 1/17
No full textAlternative dispute resolution (ADR) is constantly gaining ground, both at domestic and international level. New forms of dispute settlement with a mix of public and private components are emerging in fields where this was not the case until recent times, as some contributions to this Zoom-out have attempted to demonstrate. In the field of investment law we have witnessed a somehow opposite trend. Traditionally, disputes in this field have been settled by means of arbitral tribunals established mostly on the basis of bilateral or multilateral investment agreements (IAs) under a variety of arbitration facilities, which are collectively referred to as investor-to-State dispute settlement (ISDS). Traditional ISDS presents many characteristics of ADR, starting from the strong role that private parties play in it (for example when it comes to the appointment of arbitrators). The practice has shown that the system has clear advantages but also undeniable disadvantages.
The prevailing opinion in recent years has been that the latter considerably outweigh the former, resulting in what has been termed the backlash against investment arbitration in a volume appeared a
few years ago. In this contribution, how-ever, I will not dwell on the details of the crisis that has affected investment arbitration, nor will I engage in a discussion of whether that backlash is entirely justified. My focus will be much more modest. One of the most tangible consequences of this growing dissatisfaction towards investment arbitration is the launch on the part of the EU of a court-like system to settle investment disputes –the now famous investment court system (ICS) –as a replacement to old-fashioned ISDS. The ICS now features in all EU IAs, and has become the standard position of the EU when it comes to dispute settlement in this field. Recently, the ICS has also received the green light of the European Court of Justice (ECJ),raising doubts as to whether traditional ISDS has conclusively been sent to oblivion, at least in the EU. From a political and policy perspective, it is undoubtful that there is a strong stance on the part of the EU and of its Member States against traditional ISDS. This article, however, will focus exclusively on the legal dimension, by examining whether the ECJ’s decision should be read as meaning that investment arbitration is incompatible with the EU legal system. While itis clear that Opinion 1/17 means that the ICS is compatible with EU law, it remains to be seen whether the Court’s finding allows an a contrario reading. Namely, whether it entails the incompatibility with EU law of traditional ISDS. The analysis will start with a brief summary of the events and developments that preceded the creation of the ICS and eventually led to the current situation (Section 2), followed by an examination of the relevant parts of Opinion 1/17 (Section 3). This part will be followed by an appraisal of the possible legal implications of the decision (Section 4). Some conclusions will be offered in the closing section (Section 5) in the attempt to look beyond the boundaries of EU law.
Part of topic "The blurring distinction between public and private in international dispute resolution
Of terrorists and combatants: the application of EU anti-terrorists measures to situations of armed conflict in the general Court’s ruling concerning the Liberation Tigers of Amil Eelam
No full textThe Liberation Tigers of Tamil Eelam (LTTE) ruling of the General Court raises interesting questions concerning restrictive measures, which have seldom, if ever, been addressed by EU courts. In particular, the General Court was called upon to rule on the applicability of EU anti-terrorism legislation to a situation of armed conflict, and on some procedural issues such as the possibility for EU institutions to rely on open-source material in order to ground listing decisions. The article analyses the General Court’s approach to these issues, and argues that according to both EU and international law, as rightly pointed out by the General Court, the existence of an armed conflict does not rule out a priori the simultaneous applicability of branches of law other than international humanitarian law, including, as in the case at stake, EU anti-terrorism law. The article further argues that the approach taken by the General Court in this case with regard to procedural issues appears to be slightly too formalistic. In so doing, the General Court is arguably making the EU institutions’ life too hard when it comes to the imposition of targeted sanctions
Le 'sentenze gemelle' del Consiglio di Stato in materia di concessioni balneari e la dottrina degli effetti diretti delle direttive
No full textThe present essay dwells on the theory of direct effects of EU directives in light of the application and interpretation of such theory carried out by the Italiana Council of State
in two landmark rulings concerning the vexed question of beach concessions granted by the Italian State allegedly in breach of art. 12 of the so-called Services Directive. The essay argues that while commendable in its intentions (that is, to finally guarantee compliance of the Italian legislation with the said Directive) the Council of State has applied an erroneous version of the direct effects theory that goes well beyond its scope as interpreted by the Court of Justice of the EU. The essay suggests that Italian courts (most appropriately, the Constitutional Court) should find alternative legal mechanisms based entirely on domestic law to overcome the Italian lawmaker’s unrepentant lack of discipline regarding the correct transposition of the Services Directive in the field of beach concessions
The climate crisis and the separation of powers in the EU. What role for the Court of Justice?
No full textThis paper examines the intersection of strategic climate litigation and the separation of
powers within the European Union. By examining key cases and the specific characteristics
of the EU legal order, it argues that the judicialisation of climate policies at the EU level will
not be at odds with the Union’s peculiar configuration of the separation of powers. The study
suggests that the ECJ should enhance judicial oversight in EU climate policy and take a more
proactive posture in the field of climate change
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