1,721,007 research outputs found
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
The future of investment arbitration in the light of Opinion 1/17
Full text linkAlternative 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
Case C-376/10 P, Pye Phyo Tay Za v. Council, Judgment of the European Court of Justice (Grand Chamber) of 13 March 2012.
No full textpeer reviewe
The EU’s Withdrawal from the Energy Charter Treaty between Treaty Law and International Responsibility Issues
No full textThe article examines the European Union’s (EU) withdrawal from the Energy Charter
Treaty (ECT), focusing on questions of treaty law and international responsibility. The
article explores the legal intricacies of modifying the ECT through an inter se agree-
ment and the issues surrounding the survival clause. It also considers the attribution of
responsibility post-withdrawal, particularly when (remaining) Member States imple-
ment EU measures potentially breaching the ECT. The analysis reflects on the broader
implications for international investment law and the tension between plurilateralism
and greening initiatives
Member States Prior Agreements and Newly EU Attributed Competence: What Lesson from Foreign Investment
No full textpeer reviewe
Sanzioni mirate dell’Unione Europea contro uno Stato terzo e tutela dei diritti fondamentali nella sentenza Bamba: un passo avanti ed uno indietro?
No full text- …
