12th Frankfurt Roundtable on Investment Law and Investment Treaty Arbitration, November 14, 2016

Logo_FIACThis year’s Frankfurt Roundtable on Investment Law and Investment Treaty Arbitration (Gesprächskreis Investitionsrecht und – Schiedsgerichtsbarkeit) is held on November 14, 2015. As always, Alfred Escher and Jan Schäfer are organizing the event in conjunction with the Frankfurt International Arbitration Center. Continue reading

Share and Enjoy

Transparency in Investment Arbitration: Video Stream of Hearing in Vattenfall vs. Germany

icsid-logoVattenfall’s challenge to Germany’s opt-out from nuclear power is getting a lot of public attention. Vattenfall’s earlier case aganist Germany, commenced in 2009 over environmental restrictions for a coal-fired power plant in Hamburg, is often cited as an example that investment treaty arbitration lacks transparency. Not so this time: Last week, ICSID announced that the parties have agreed to make the hearing open to the public. Continue reading

Share and Enjoy

Slovakia v. Eureko: German Federal Supreme Court Refers Question of Validity of BIT Arbitration Amongst Member States to the ECJ

433px-Slovakia_coat_of_arms_1939-1945_svgWhether 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

Share and Enjoy

TTIP: Investor-State Dispute Settlement and Constitutional Law

The latest issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabel Journal of Comparative and International Private Law” (RabelsZ) has been released. I just wanted to highlight an article by Armin Steinbach titled Investor-Staat-Schiedsverfahren und Verfassungsrecht. Here is the abstract:

“Investment treaties allow foreign investors to claim damages against states before tribunals of investor-state dispute settlement (ISDS). More frequently, such dispute settlement procedures tend to replace proceedings before national courts. This has given rise to the heated debate surrounding the ongoing negotiation about the free trade agreements between the European Union and the United States of America. This article identifies and discusses the constitutional law implications of such tribunals. The composition of the tribunals of private persons, the lack of a legal ground for public policy reasons to override investors’ rights, the dynamic development of the adjudication based on vague legal terms and the lack of publicity and transparency in the proceedings – all this raises questions from the perspective of democratic principle and rule of law. Based on democratic principle doctrine, this article classifies rulings of tribunals as acts of public authority and highlights the lack of material and personal legitimacy and examines whether a state monopoly of adjudication can be derived from the separation of powers principle. It discusses the publicity and control of ISDS tribunals as an obligation enshrined in the democratic principles and highlights the missing legal reviewability of ISDS rulings compared to tribunals established under German administrative law. Finally, the article explores possible compensatory instruments addressing the identified deficits based on an application of investments treaties in line with constitutional law principles.”

For another voice highly critical of the current proposals for investor-state dispute settlement, see the recent statement of Deutscher Richterbund, the association of German judges.

Share and Enjoy