European Law and Investment Treaties Peter J Turner
- Slides: 8
European Law and Investment Treaties Peter J. Turner, Freshfields Bruckhaus Deringer LLP, Paris BIICL, 4 December 2008
Applicable Laws § The law applicable to the substantive protections under the investment treaty § The law applicable to jurisdictional issues (scope of arbitration clause) § The law applicable to the procedure of the arbitration § Eastern Sugar issue concerned the law applicable to the substantive rights despite raising a question of jurisdiction
The law applicable to the merits § Can be seen as a composite § Hybrid nature of investment-treaty law § Investment made under municipal law § Law applicable to contract, if any, likely to be municipal law § Investment treaty an instrument to be construed under public international law § Investment treaty a lex specialis
Netherlands-Czech Republic BIT § Article 8(6) § The arbitral tribunal shall decide on the basis of the law, taking into account in particular though not exclusively: the law in force in the Contracting Party concerned; the provisions of this Agreement, and other relevant Agreements between the Contracting Parties; the provisions of special agreements relating to the investment; the general principles of international law. § CME v Czech Republic § Tribunal construed art 8(6) as follows: § tribunal has broad discretion § sources listed not exclusive § no specific order or heirarchy
Art 42(1) ICSID Convention § Vivendi annulment: § in respect of a claim based upon a substantive provision of the BIT … the inquiry which the tribunal is required to undertake is one governed by … the BIT and by applicable international law. Such an inquiry is neither in principle determined, nor precluded, by any issue of municipal law. § Compañia de Desarollo de Santa Elena v Costa Rica: § Under Art 42(1), international law prevails over municipal law
Place of EC law § Tribunal’s inquiry: § Treaty is to be interpreted under international law § Applicability of VCLT § EC treaty as a later treaty covering the same subject-matter § Termination in whole or in part § Arts 59 and 30 VCLT § EC law as part of either (a) international and/or (b) municipal law
Other thoughts § Unilateral denunciation and transitional provisions § No practical effect even if challenging Member States right about effect of EC Treaty § Importance of investor-state arbitration: § Eastern Sugar tribunal found it was an important differentiating factor between the BIT and the EC Treaty § Query result if in all other respects EC Treaty held to cover the same subject -matter
© Freshfields Bruckhaus Deringer LLP 2008 This material is for general information only and is not intended to provide legal advice.
