By Eric Leikin (Associate at Freshfields Bruckhaus Deringer) and Martina Magnarelli (PhD Candidate at University of Lausanne)
Reliance on the investor-state dispute resolution (ISDS) mechanism of the Energy Charter Treaty (ECT) is booming, with at least ten new cases registered in the past year alone. Notably, nine of these ten cases – and almost 60% of all publicly reported cases initiated to date – have been brought by an investor from a Member State of the European Union (EU) against another EU Member State. Not everyone, however, shares the enthusiasm for such “intra-EU ECT claims” – most importantly, the European Commission. In almost all recent cases, the EC has filed amicus curiae submissions attempting to persuade the arbitral tribunal to refuse jurisdiction on the basis that the ECT cannot give rise to intra-EU disputes. The EC concedes that, unlike more than 20 other treaties to which the EU (or its predecessor the EEC) is a party, the ECT does not contain an explicit “disconnection clause” providing that, in the case of conflict, EU rules prevail. Nonetheless, the EC has argued that an implied disconnection clause must be read into the ECT. The EC has also argued that because the EU is a signatory to the ECT, investors from one Member State do not have standing to bring arbitration claims against a fellow Member State, as they are essentially nationals of the same contracting party (i.e., the EU). The question is: Will the EC be successful at shutting off the flow of intra-EU ECT claims, or will the boom continue?
Continue reading The Future of Intra-EU ECT Claims in the Face of EC Opposition: Boom or Bust?
Written by Christopher Smith (Associate, King & Spalding LLP, Atlanta)
On May 1, 2017, the United States Supreme Court issued its unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. (137 S.Ct. 1312). In its ruling, the Court addressed the expropriation exception to the Foreign Sovereign Immunities Act (the “FSIA”). The expropriation exception permits plaintiffs to bring claims in United States federal courts where a foreign state takes property rights in violation of international law through an agency or instrumentality that is engaged in commercial activity in the United States. (28 U.S.C. § 1605(a)(3)).
Continue reading Expropriation under the Foreign Sovereign Immunities Act – Raising the Jurisdictional Bar
by André Pereira da Fonseca (Senior Associate at Abreu Advogados in Lisbon)
There are over 250 million people who speak Portuguese, being commonly identified as the sixth most spoken language in the world.
It is an official dialect in Angola, Brazil, Cabo-Verde, Equatorial-Guinea, Guinea-Bissau, Macau, Mozambique, Portugal, São-Tomé and Principe and Timor-Leste.
Business transactions are entered into daily within a vast territorial space that reaches from Macau’s ruins of Saint Paul, passing through the exotic city of Maputo unto the Brazilian State of the Amazonas. The area of the globe occupied by the current members of the “Community of Portuguese Language Countries” is of 10,742,000 km2 scattered over four continents.
Continue reading Portugal – A New Hub For International Arbitration Disputes
By Tadas Varapnickas, Associate at TGS Baltic, Vilnius
Since 1996, commercial arbitration in Lithuania has been regulated by the Law on Commercial Arbitration which was based on the provisions of the 1985 UNCITRAL Model Law on International Commercial Arbitration. In 2012, the Lithuanian Parliament revised the Law in accordance with the 2006 amendments to the UNCITRAL Model law. Furthermore, in order to emphasize its international origin, Article 4(5) of the Law establishes that the provisions of the Law should be interpreted in light of the UNCITRAL Model law.
Continue reading Lithuania takes Steps to Facilitate Post-Arbitral Court Proceedings and to Maintain Confidentiality during the Arbitral Process
By Eric van Eyken, Associate at Hanotiau & van den Berg
Despite apparent “America First” language in the US Summary of Objectives for the NAFTA renegotiation which appear contrary to the minimum standards of treatment and fair and equitable treatment, those protections are likely to remain in a new NAFTA.
Continue reading Is America First the End of FET?