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.
Today 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.”
Whether BIT arbitration between EU member states is permitted, as a matter of EU law, is heavily debated. The EU Commission strongly takes the view that there is no room for investment treaty arbitration amongst member states. As previously discussed here, the Commission has intervened in arbitrations in support of the position that the arbitral tribunal lacked jurisdiction to hear the dispute. Eureko v. Slovakia apparently is the first case where this issue has reached state courts, namely the courts in Germany. Earlier this week, in its second decision on the matter, the German Federal Supreme Court (Bundesgerichtshof), published its decision to refer the matter to the European Court of Justice (as I had expected it would). The Court clearly felt obliged to refer the matter to the European Court of Justice, but at the same time was very clear that in its opinion, investment treaty arbitration amongst member states is compatible with EU law. Continue reading
Pietro Franzina, University of Ferrara, who has guest-posted here before, has brought this conference to my attention. A first session will look at “Recent developments in the law of EU external relations inside and outside judicial cooperation in civil matters” and a second session focuses on “Developing the external dimension of EU private international law: policies, prospects, techniques.” The conference looks at these issues in the light of Opinion 1/13 of the European Court of Justice. Click here for the programme. It is one of these events (and locations, I may add) where one would like be a graduate student again, with ample time to attend…