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Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
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.
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.
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.
Article

TTIP, business as usual?

Europees handelsbeleid en zijn democratische legitimiteit

Journal Res Publica, Issue 2 2018
Keywords Democratic legitimacy, input legitimacy, throughput legitimacy, European Union, trade policy, TTIP
Authors Joke Matthieu
AbstractAuthor's information

    The Transatlantic Trade and Investment partnership (TTIP) can be considered a game changer among trade agreements. TTIP not only aims to shape tomorrow’s trade policy, but has also had a huge influence on the democratic legitimacy of the EU. Based on recent literature on democratic legitimacy in the EU, this paper studies how the TTIP negotiations score in terms of input and throughput legitimacy. Our results show that these negotiations have had their fair share of problems, such as the disproportionally large influence of corporations and a lack of transparency and accountability. However, these legitimacy problems occurred mainly in the first months of the negotiation process. Due to large scale protests and critiques from civil society, measures were taken to boost the legitimacy of the process.


Joke Matthieu
Joke Matthieu studeerde politieke wetenschappen aan de Vrije Universiteit Brussel (VUB) waar ze in 2016 afstudeerde met grootste onderscheiding. Voor haar masterproef onderzocht ze de democratische legitimiteit van de TTIP-onderhandelingen en daarvoor kreeg ze de prijs voor de beste masterproef van de faculteit Economische en Sociale wetenschappen. Ze zette haar academische carrière verder aan de VUB, waar ze momenteel werkt als onderwijsassistent en doctoraatsonderzoeker. Haar voornaamste onderzoeksinteresses zijn democratische innovatie, politieke socialisatie en burgerschap. Ze bereidt momenteel een doctoraat voor over de effecten van deliberatie op het burgerschap van jongeren.
Article

The New World Order in Dispute Resolution

Brexit and the Trump Presidency

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords dispute resolution, Brexit, Donald Trump, technology, trade
Authors Ijeoma Ononogbu
AbstractAuthor's information

    The Brexit vote and Donald J Trump as the leader of the Free world in 2016 brought in a new world order. Two hugely important and unexpected events of 2016. Both have called into question the stability of established international commercial dispute resolution schemes in the United Kingdom and the United States in our tech savvy world. As the impact of both events unfolds, adaptations made to the existing dispute resolution schemes will be negotiated and the role that technology can play in the new approaches to international commercial dispute resolution will be determined. Consequently, there has been the changing face of Western politics after the Cold War, based on traditional group identity giving way to an uncertain landscape in which the political class struggle to define. The impact and disruption of technology in politics has given everyone a voice regardless of social class. Consequently, the EU under Mr Juncker and the UK Prime Minister seem to have mutual respect in their negotiations, given that the UK has made a number of notable concessions in order to move the trade discussions forward.
    Under Donald Trump presidency, the state of North America Free Trade Agreement (NAFTA) seems binary with the probing question will NAFTA survive or not. NAFTA is currently undergoing transformation, a process that incorporates Investor-State Dispute Settlement (ISDS).


Ijeoma Ononogbu
Ijeoma Ononogbu is a London-based Solicitor, International Dispute Resolution, Director, Dispute Resolver Ltd and Fellow of the Chartered Institute of Arbitrators.
Article

Regulatory Review of European Commission Impact Assessments

What Kind for Which Better Regulation Scenario?

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords impact assessment, Better Regulation, non-judicial review, regulatory scrutiny, European Union
Authors Anne C.M. Meuwese
AbstractAuthor's information

    The article maps the various ways in which review of Commission impact assessments takes place by the Regulatory Scrutiny Board, the European Ombudsman, the European Court of Auditors, and the Court of Justice of the European Union, among others, and assesses the effect these review activities have on the framework and functioning of this primary Better Regulation tool.


Anne C.M. Meuwese
Tilburg Law School, The Netherlands, Professor of European and Comparative Public Law.

Plarent Ruka
LLM, Dr iuris Candidate, Albrecht Mendelssohn Bartholdy Graduate School of Law/ University of Hamburg.

Kinga Debisso
Chief Legal Advisor at the Office of the Ombudsman for Future Generations of Hungary; Junior Research Fellow at Pázmány Péter Catholic University, Budapest.
Research Note

Waarom zijn laagopgeleiden vaker tegen vrijhandel?

Drie verklaringen getoetst in Nederland

Journal Res Publica, Issue 4 2016
Authors Jeroen van der Waal and Willem de Koster
Author's information

Jeroen van der Waal
Jeroen van der Waal is universitair hoofddocent sociologie aan de Erasmus Universiteit Rotterdam. Veel van zijn onderzoek beoogt te verklaren hoe sociale stratificatie verbonden is met waardeoriëntaties, stemgedrag en gezondheidsverschillen in westerse landen.

Willem de Koster
Willem de Koster is universitair hoofddocent cultuursociologie aan de Erasmus Universiteit Rotterdam. Veel van zijn onderzoek betreft de ontwikkeling, achtergronden en gevolgen van cultureel conflict en onbehagen in westerse landen.
Article

Mondiale standaarden of race-to-the-bottom?

Een analyse van regelgevende samenwerking in de onderhandelingen over een Trans-Atlantisch Vrijhandels- en Investeringsakkoord (TTIP)

Journal Res Publica, Issue 3 2015
Keywords trade, European Union, TTIP, regulatory convergence, global standards, race-to-the-bottom
Authors Ferdi De Ville and Niels Gheyle
AbstractAuthor's information

    Since the summer of 2013, the European Union (EU) and the United States (US) are negotiating the Transatlantic Trade and Investment Partnership (TTIP). Especially for the EU, this is one of the policy priorities for the present term. TTIP is supposed to bring much-needed growth and jobs and to enable the EU to remain a global standardsetter, all without lowering EU levels of regulatory protection. Opponents of the agreement, however, fear that TTIP would lead to a regulatory race-to-the-bottom. This article scrutinizes these claims through a detailed document analysis complemented with a number of interviews. It is embedded in the political-economic literature on the trade-regulation nexus as well as on exporting standards and secondary literature on past EU-US regulatory cooperation attempts. We argue that the effects of TTIP are dependent on the concrete mode of regulatory convergence chosen in the agreement. If, as seems presently most plausible, the negotiators opt for bilateral mutual recognition as their preferred mode for regulatory convergence, the plausibility that TTIP would lead to global standards is reduced. The risk of running into a regulatory race-to-the-bottom increases in that case, but will ultimately depend on the number of sectors where this mode is applicable and under which conditions this is applied. We conclude that the probability is low that the TTIP agreement being negotiated will lead either to a significant increase in global standards or to a direct large-scale race-to-the-bottom.


Ferdi De Ville
Ferdi De Ville is docent Europese Politiek aan het Centrum voor EU-Studies van de Universiteit Gent. Zijn onderzoeksbelangstelling gaat voornamelijk uit naar Europees handelsbeleid en de politiek-economische gevolgen van de eurocrisis.

Niels Gheyle
Niels Gheyle is als doctoraatsonderzoeker verbonden aan het Centrum voor EU-Studies. Zijn onderzoek richt zich op de politisering van Europees handelsbeleid, met een specifieke focus op het vrijhandelsverdrag tussen de VS en de EU (TTIP).
Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
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