Arbitration Links - Linklaters
  • Year: 2019
  • Topic: Investment Arbitration

Judicial protection of investors in the EU: remedies offered by investment arbitration, the ECHR and EU law

17 April 2019 Guillaume Croisant; Xavier Taton, Europe

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Partner Xavier Taton and associate Guillaume Croisant, both from our Brussels office, have contributed to the Indian Journal of Arbitration Law.

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AG Bot concludes that CETA’s Investment Court System is compatible with EU law

21 February 2019 Guillaume Croisant, Europe

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On 7 September 2017, Belgium requested the opinion of the Court of Justice of the European Union (“CJEU”) on the compatibility with EU law of the Investment Court System (“ICS”) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (“CETA”).

In his much anticipated opinion rendered on 29 January 2019, Advocate General (“AG”) Bot considers that this mechanism for the settlement of investor-State disputes is compatible with the EU Treaties and the EU Charter of Fundamental Rights.

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EU Member States announce their intention to terminate intra-EU BITs

30 January 2019 Kirstin Schwedt, Europe

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In early January, the EU Member States announced their intention to terminate all intra-EU bilateral investment treaties. Their declarations come in reaction to last year’s Achmea-decision on intra-EU investor-state dispute settlement. Interestingly, the EU Member States could not agree on a unitary position regarding the Energy Charter Treaty.

How will these political declarations impact pending arbitrations, or those initiated before the EU Member States put in place a new regime?

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Investment protection under the USMCA

22 January 2019 Akshay Sewlikar, Latin America; North America

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After protracted negotiations which have been covered extensively in the press, the US signed the new United States, Mexico and Canada Agreement (“USMCA”) with Mexico and Canada on 30 November 2018. The USMCA replaces the North American Free Trade Agreement 1994 (“NAFTA”) which had governed trade relations between the parties. The investment provisions were contained in Chapter 11 of NAFTA and applied to all investments and investors of any party.  Subject to specific carve outs, all such investments were subject to the dispute settlement provisions in Chapter 11 which provided for investor-state arbitration.  The proposed investment regime in Chapter 14 of USMCA is a significant departure from its equivalent Chapter 11 of NAFTA. 

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