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

Hard Brexit for Judicial Cooperation: No Revival of Brussels, Rome Conventions

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Given the activities of the Advisory Commission, with two recommendations and a press release on a default with a couple of weeks, the blog has been rather art law-heavy recently. So for a change, let’s revisit another recurring theme: Brexit! Over at legal twitter, Professor Steve Peers published a “thread on where we stand with EU conclusion of the Brexit deal, based on internal unpublished Council documents.” One of these documents Professor Peers shared is a letter of the UK Mission to the European Union dated 29 January 2021. It reads, in its relevant part, as follows: Continue reading

The Future of International Judicial Assistance

This post first appeared on Ted Folkman’s Letters Blogatory, which is celebrating its 10th anniversary – if you don’t know that blog yet, do check it out, it  is rightly called The Blog of International Judicial Assistance. Ted, who has been a guest on this blog, asked me to contribute some thoughts about the future of international judicial assistance (IJA). Ted’s invitation came at a time when I experience, for the first time, a step backwards in that field: The Brexit Deal between the European Union and the United Kingdom, which in my view is a “sectoral hard Brexit” for civil judicial assistance. Continue reading

Brexit: Council Decision on Members of the EU-UK Arbitration Panel

While the Brexit Deal continues to make headlines, the EU and the UK carry on with the implementation of the institutional Brexit arrangements. The Withdrawal Agreement provides for an EU-UK Arbitration panel to decide disputes between the parties. Yesterday, the Council Decision appointing the members of the panel was published. The title of the document is quite a mouthful, but then it tells you all there is to know about the document, the remainder really is just a list of names: Continue reading