In October 2023, the European Commission published a Non-Paper of Annotations to Model Clauses for Negotiation or Re-negotiation of Member States’ Bilateral Investment Treaties (“BITs”) with Third Countries (“Model Clauses”) (“Non-Paper”). Non-papers are informal documents usually put forward in closed negotiations with EU institutions. The views in this Non-Paper do not necessarily communicate an official position. The Model Clauses may reflect a broader investment protection approach of the Commission and promote best practices for Member States, but they are not an official EU Model BIT. Th ..read more

Several EU member states have abandoned the modernization of the ECT and expressed their intention to withdraw from the ECT (see here). In February 2023, a Commission non-paper was leaked, which describes a coordinated withdrawal of the EU and its member states from the ECT as the ‘the most adequate option’. Such a coordinated withdrawal envisages an inter se modification of the ECT to exclude intra-EU investment arbitration and the applicability of the sunset clause in intra-EU relations. If the sunset clause is not removed inter se, investors from the EU could still bring investment claims a ..read more

Much has been written – on this page and elsewhere – about the future viability of investor-state arbitration based on intra-EU BITs in the aftermath of the CJEU’s Achmea decision. In the authors’ view, the May 2020 Termination Agreement concluded between 23 of the 27 EU Member States with the intention to terminate existing intra-EU BITs has rendered further discussion on this topic largely academic – with the exception of the impact on ongoing intra-EU arbitrations and the separate fate of the Energy Charter Treaty. This has become all the more true with the Agreement’s recent entry into for ..read more

In early September 2020, the United Kingdom (‘UK’) Secretary of State for Northern Ireland, Brandon Lewis, conceded in no uncertain terms that the UK Internal Market Bill would violate public international law, albeit only in “a very specific and limited way“. This immediately caused controversy, to put it mildly. The EU Commission did not take long to react, stating that it would “not be shy” in using the dispute resolution mechanism under the EU-UK Withdrawal Agreement. The UK’s advertised breach of public international law has many facets. However, it also brings to the fore a dispute resol ..read more

The Energy Charter Treaty (ECT) has recently become a household name, moving from the oblivion of the 1990s, when the treaty was drafted, to one of the most hotly debated topics in legal (and other) circles nowadays. Some have demonized it as an instrument for the corporate usurpation of democratic functions, such as the host state’s right to regulate its energy and environmental policies, while others have defended it as a unique regime promoting the rule of law in international energy relations. Against this background, this post reflects upon the increasingly complex relationship between EU ..read more

The signatories of the Energy Charter Treaty (“ECT”) have begun the process of the Treaty’s modernisation. This is by no means a small task given the complexity of the Treaty’s scope which covers energy trading, efficiency, transit, investment protection and dispute resolution. Additionally, in order to amend it, all the signatories need to be on board. Among other things, the signatories have declared that they want to make the ECT greener. Recently, the Energy Charter Secretary Urban Rusnák has stated that the ECT can play a key role in the implementation of the Paris Agreement and UN Sustai ..read more

On 28 January 2020, the arbitration panel has been formed in the dispute between the EU and Ukraine regarding Ukraine’s export prohibition of unprocessed timber. Notably, this is the first dispute between the EU and Ukraine under the Association Agreement (“EU-Ukraine AA”), and here, the EU invokes the dispute settlement mechanism provided by the free-trade agreement instead of the usual WTO dispute settlement mechanism.   Background of the Dispute In brief, on 20 June 2019, the European Union initiated arbitration against Ukraine under Article 306 of the EU-Ukraine AA between the Europea ..read more

After the quite tumultuous 2018, which saw the seminal Achmea judgment of the Court of Justice of the European Union and the subsequent awards on jurisdiction by a number of investment treaty arbitration tribunals, 2019 comes as a sequence and furtherance to developments that were in process in the course of the previous year. The tense relationship between EU law and investment treaties seems to have been triggering ripples in the arbitration world in the course of the year. 2019 began with the political reverberations of the Achmea saga. In January 2019, the EU Member States adopted declarat ..read more

The recently leaked treaty for the termination of intra-EU BITs can be seen as the culmination of an ongoing effort by the European Commission to discourage investment arbitration between Member States, reflecting, in the eyes of many, a tension between public international law and EU law. In spite of this, and even after the Court of Justice of the European Union’s (CJEU) Achmea decision, intra-EU proceedings are still being instituted, most recently in the cases of VM Solar Jerez v. Spain and Strabag v. Germany. In the aftermath of Achmea, EU Member States expressed their intention to termin ..read more

Amidst the typical hustle and bustle of year-end festivities, our Southeast Asia editorial team takes a moment to look back on the arbitration developments in Southeast Asia in 2019.   New Free Trade Agreements and Developments in National Laws In 2019, states comprising the Association of Southeast Asian Nations (“ASEAN”) continued to demonstrate their commitment to international investment protection. New free trade agreements containing investment protection provisions were signed with the European Union, members of the Regional Comprehensive Economic Partnership (RCEP) and Canada. Als ..read more