Intra-EU Investment Arbitration: Frankfurt Court of Appeals Finds BIT-Based Arbitration Inadmissible

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An Austrian and a Croatian bank commenced arbitral proceedings against the Republic of Croatia seeking damages on the basis of the 1999 Agreement between the Republic of Austria and the Republic of Croatia for the Promotion and Protection on Investments (BIT); the arbitral tribunal was to be seated in Frankfurt am Main. Croatia applied to the Frankfurt Court of Appeals (Oberlandesgericht) to find that the arbitral proceedings were inadmissible (Sec. 1032 para. 2 German Code of Civil Procedure, ZPO). Croatia relied on the 2018 Achmea decision of the European Court of Justice (ECJ) – the well-known case which also originated in the Frankfurt Court of Appeals and came to the ECJ via a reference from the German Federal Supreme Court (Bundesgerichtshof). Continue reading

Judicial Cooperation in Civil Matters: Hard Brexit After All?

During the course of the morning, leaked versions of the draft Brexit treaty and accompanying documents started to appear on legal @twitter, only to be followed by the official publications by both the UK government and the EU Commission. I have now had an initial look at what the documents say regarding judicial cooperation in civil matters. Spoiler alert: Radio silence on this topic. Continue reading

The Termination of Bilateral Investment Treaties in the EU – One Agreement to End Them All?

My colleagues Nick Storrs and Michael Wietzorek look at the EU memberstates’ exit from bi-lateral investment treaties (BITs) in the wake of the Achmea decision of the European Court of Justice. This case had several appearances on this blog, as it made its way from the Frankfurt Court of Appeals (Oberlandesgericht) and the Federal Supreme Court (Bundesgerichtshof) to the European Court of Justice, first under its original name, Slovakia v. Eureko. 

On 5 May 2020, 23 Member States of the EU entered into an Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union (the Agreement). The Agreement will terminate any bilateral investment treaties (BITs) in force between any of Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, France, Germany, Greece, Hungary, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, and Spain, as well as Belgium and Luxembourg, who had entered into BITs together as the Belgo-Luxembourg Economic Union.

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Today is Brexit Day – What’s New?  

Get ready for brexitToday is Brexit Day. The United Kingdom is leaving the European Union. It might be worth looking at what changes as of midnight today. Spoiler alert: Practically speaking, not much. Article 126 of the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement; WA) is short and straightforward: “There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.”

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