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Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005)

Back to the Future: Ferenc Mádl, The Law of the European Economic Community (1974)

Investment Protection Then and Now

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Ferenc Mádl, investment protection, SEGRO and Horváth, Achmea, BIT
Authors Miklós Király
AbstractAuthor's information

    The first part of the article (Sections 1-2) reviews Prof. Ferenc Mádl’s magnum opus, published in 1974, emphasizing the importance of the monograph’s publication in the communist era. It discusses the unique structure of the volume, which, from the perspective of undertakings and companies, examined the fundamental economic freedoms and EEC competition law in parallel. The second part (Sections 3-5) highlights the issue of investment protection, noting that Mádl’s early academic theorem has been vindicated decades later by the case-law of the CJEU, in particular in its SEGRO and Horváth judgment: Provisions ensuring free movement of capital serve to protect foreign investments as well.


Miklós Király
Miklós Király: professor of law, ELTE Law School, Budapest.
Article

A New Aspect of the Cross-Border Acquisition of Agricultural Lands

The Inícia Case Before the ICSID

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ICSID, investment law, free movement of capital, land tenure, land law
Authors János Ede Szilágyi and Tamás Andréka
AbstractAuthor's information

    The Inícia case concluded at the International Centre for Settlement of Investment Disputes (ICSID) on 13 November 2019 shows that international arbitration institutions may have a significant role even in the EU Member States’ disputes concerning the cross-border acquisition of agricultural lands. Taking the regulation concerning cross-border acquisition into consideration, the last decade was extremely eventful: (i) Following the expiration of transitional periods, the new Member States were obliged to adopt new, EU law-conform national rules concerning the cross-border acquisition of agricultural lands. (ii) The European Commission began to generally and comprehensively assess the national land law of the new Member States. (iii) The FAO issued the Voluntary Guidelines on the ‘Responsible Governance of Tenure of land, fisheries and forests in the context of national food security’ (VGGT), which is the first comprehensive, global instrument on this topic elaborated in the framework of intergovernmental negotiations. (iv) Several legal documents, which can be regarded as soft law, concerning the acquisition of agricultural lands have been issued by certain institutions of the EU; these soft law documents at EU level are as rare as the VGGT at international level. (v) The EU initiated numerous international investment treaties, regulations of which also affect numerous aspects of the cross-border acquisition of agricultural lands. (vi) The Brexit and its effect on the cross-border acquisition of agricultural lands is also an open issue. Taking the above-mentioned development into consideration, the Inícia case may have a significant role in the future of the cross-border transaction among EU Member States and beyond.


János Ede Szilágyi
János Ede Szilágyi: professor of law, University of Miskolc; director, Ferenc Mádl Institute of Comparative Law. ORCID ID: 0000-0002-7938-6860.

Tamás Andréka
Tamás Andréka: head of Department for Legislation, Ministry of Agriculture; PhD student, University of Miskolc.
Article

The CETA Investment Court and EU External Autonomy

Did Opinion 1/17 Broaden the EU’s Room for Maneuver in External Relations?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords EU investment treaties, investment arbitration, EU external relations, EU treaty-making capacity, level of protection of public policy interests
Authors Wolfgang Weiss
AbstractAuthor's information

    The present contribution analyzes Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, failed to raise any objections. First reactions welcomed this opinion as an extension of the EU’s room for maneuver in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent. This was made clear by the Court in the text of the opinion, and the restrictions identified are likely to confine the leeway for EU external contractual relations. Owing to their fundamental importance, these restrictions, inferred by the CJEU from the autonomy of the Union legal order form the core of this contribution. In what follows, the new emphasis in the CETA Opinion on the external autonomy of Union law will be analyzed first (Section 2). Subsequently, the considerations of the CJEU regarding the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA Opinion stands in stark contrast to its approach in earlier decisions as it misjudges problems, only seemingly providing for a clear delimitation of competences (Section 3). This is followed by an exploration of the last part of the CJEU’s autonomy analysis, in which the CJEU tries to respond to the criticism of regulatory chill (Section 4). Here, by referring to the unimpeded operation of EU institutions in accordance with the EU constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned. With this, the CJEU takes back the earlier comprehensive affirmation of the CETA Tribunal’s jurisdiction with regard to calling into question the level of protection of public interests determined by the EU legislative, which raises numerous questions about its concrete significance, consequence, and scope of application.


Wolfgang Weiss
Wolfgang Weiss: professor of law, German University of Administrative Sciences, Speyer.
Conference Reports

Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács

Report on the ‘Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács’ Organized by University of Pécs, 4 October 2019, Pécs

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords conference report, János Bruhács, humanitarian law, environmental law, fragmentation
Authors Ágoston Mohay and István Szijártó
AbstractAuthor's information

    On 4 October 2019, the Department of International and European Law at University of Pécs, Faculty of Law organized an anniversary conference to celebrate the 80th birthday of professor emeritus János Bruhács. The conference held in Pécs brought together speakers representing universities and research institutions from all over Hungary. The four sections of the conference dealt with topics ranging from international humanitarian law to international environmental law and the question of fragmentation of the international legal order. The organizers sought to address issues, which represented important fields of research in the works of Professor Bruhács.


Ágoston Mohay
Ágoston Mohay: associate professor of law, University of Pécs.

István Szijártó
István Szijártó: law student, University of Pécs.
Article

The Impact of the Achmea Ruling on Intra-EU BIT Investment Arbitration

A Hungarian Perspective

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Achmea, Intra-EU BIT, investment arbitration, investment protection, Hungary
Authors Veronika Korom
AbstractAuthor's information

    The Achmea judgment of the CJEU brought the worlds of EU law and investment arbitration on a collision course. The judgment sent shockwaves through the EU investment arbitration community, which feared that Achmea would be the death knell of intra-EU BIT arbitration. In the years since Achmea, however, arbitral tribunals, ad hoc committees and national courts have found ways around Achmea, effectively eliminating its practical impact on intra-EU investment disputes. On 5 May 2020, the majority of EU Member States adopted a multilateral agreement that seeks to terminate intra-EU BITs and provides for a transitional regime for pending arbitrations in order to give effect to Achmea. This agreement, once ratified, will mark the end of intra-EU BIT arbitration in the future, although its impact on pending proceedings remains unclear. With its 22 intra-EU BITs and several arbitration proceedings pending under these treaties, Hungary has relied heavily (albeit unsuccessfully thus far) on Achmea in recent years as part of its defense strategy. The final termination of intra-EU BITs will be a win for Hungary in the short term, as no new investment arbitrations can be pursued by EU investors against Hungary. In the long term, however, the termination of intra-EU BITs will leave Hungarian companies who invest in the EU without sound legal protection and may even adversely impact Hungary’s standing as an attractive place for EU investment.


Veronika Korom
Veronika Korom: assistant professor of law, ESSEC Business School.
Article

Law and Identity in the European Integration

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords hierarchy of norms, heterarchy, rule of law, identity, culture
Authors János Martonyi
AbstractAuthor's information

    The success of the European integration depends, to a large extent, on restoring the equilibrium amongst its various dimensions: the economic, the political and the cultural. This rebalancing should primarily focus on upgrading the hitherto relatively neglected cultural dimension of the European construct, as a basis of European identity. Since law is not only an instrument, but a core element of European identity, rule of law, should be respected on the international, European and national level. The traditional strict, ‘Kelsenian’ hierarchy of legal norms has been substantially loosened, primarily, but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This applies equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European, law and the constitutional identity of the Member States aim at protecting the core principles of European law, and the laws of the Member States, respectively. The rule of law does not necessarily presuppose a neat geometric hierarchy of legal norms. It does require, however, an orderly structure, where the precise areas of the autonomy of EU law, as well of the constitutional identity of Member States are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately, rule of law could be substantially reinforced through mutual empathy and understanding as well as continuous and effective dialogue, consultation and concentration between the various levels of legislation and, in particular, of adjudication.


János Martonyi
János Martonyi: professor emeritus, University of Szeged; former Minister of Foreign Affairs of Hungary (1998-2002 and 2010-2014).
Editorial

Editorial Comments: The Relevance of Foreign Investment Protection in International and EU Law

Foreword to Vol. 8 (2020) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Authors Marcel Szabó
Author's information

Marcel Szabó
Marcel Szabó: editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Article

The CETA Opinion of the CJEU

Redefining the Contours of the Autonomy of the EU Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords CETA, settlement of investment disputes, autonomy of EU law, Achmea, multilateral investment court
Authors Tamás Szabados
AbstractAuthor's information

    In its Opinion 1/17, the CJEU confirmed that the investor-state dispute settlement mechanism of the Comprehensive Economic and Trade Agreement (CETA or the Agreement) entered into between Canada and the EU is compatible with EU law. In the view of the CJEU, the CETA does not have an adverse effect on the autonomy of the EU legal order; it does not violate the principle of equality, the effectiveness of EU law and the right of access to an independent tribunal. Some of the findings of the Opinion are, however, controversial. In particular, it is questionable whether the autonomy of EU law is indeed unaffected by the Agreement, because it seems that in certain situations an interpretation of EU law is hardly avoidable for the CETA Tribunal and the Appellate Tribunal to make. With its Opinion, the CJEU not only lends support to similar trade and investment protection agreements, but it also paves the way for the participation of the EU in creating a multilateral investment court as long as the limits set by the CJEU are observed.


Tamás Szabados
Tamás Szabados: associate professor of law, ELTE Law School, Budapest.

Tamás Szabados
Senior lecturer, ELTE Law School, Budapest.
Article

Access_open The New Dutch Model Investment Agreement

On the Road to Sustainability or Keeping up Appearances?

Journal Erasmus Law Review, Issue 4 2019
Keywords Dutch model BIT, foreign direct investment, bilateral investment treaties, investor-to-state dispute settlement, sustainable development goals
Authors Alessandra Arcuri and Bart-Jaap Verbeek
AbstractAuthor's information

    In 2019, the Dutch government presented a New Model Investment Agreement that seeks to contribute to the sustainability and inclusivity of future Dutch trade and investment policy. This article offers a critical analysis of the most relevant parts of the revised model text in order to appraise to what extent it could promote sustainability and inclusivity. It starts by providing an overview of the Dutch BIT (Bilateral Investment Treaty) programme, where the role of the Netherlands as a favourite conduit country for global FDI is highlighted. In the article, we identify the reasons why the Netherlands became a preferred jurisdiction for foreign investors and the negative implications for governments and their policy space to advance sustainable development. The 2019 model text is expressly set out to achieve a fairer system and to protect ‘sustainable investment in the interest of development’. While displaying a welcome engagement with key values of sustainable development, this article identifies a number of weaknesses of the 2019 model text. Some of the most criticised substantive and procedural provisions are being reproduced in the model text, including the reiteration of investors’ legitimate expectation as an enforceable right, the inclusion of an umbrella clause, and the unaltered broad coverage of investments. Most notably, the model text continues to marginalise the interests of investment-affected communities and stakeholders, while bestowing exclusive rights and privileges on foreign investors. The article concludes by hinting at possible reforms to better align existing and future Dutch investment treaties with the sustainable development goals.


Alessandra Arcuri
Alessandra Arcuri is Professor at Erasmus School of Law and Erasmus Initiative Dynamics of Inclusive Prosperity, Erasmus University Rotterdam.

Bart-Jaap Verbeek
Bart-Jaap Verbeek is Researcher at Stichting Onderzoek Multinationale Ondernemingen (SOMO) and PhD Candidate Political Science at the Radboud University.
ECJ Court Watch

ECJ 7 April 2016, case C-5/15 (Büyüktipi), legal expenses insurance

Gökhan Büyüktipi – v – Achmea Schadeverzekeringen NV and Stichting Achmea Rechtsbijstand, Dutch case

Journal European Employment Law Cases, Issue 2 2016
Keywords Legal expenses insurance
Abstract

    A legal expenses insurance policy must cover the cost of a lawyer of choice, even in administrative proceedings (judgment largely identical to that in Massar, also summarised in this edition of EELC).

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