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Cooperation, Coexistence, or Opposition? Investor-State dispute settlement on the basis of European comprehensive free trade agreements and the Court of Justice of the European Union

den 16 oktober 2017, kl. 16:00

Lately, the concept of investor-State dispute settlement (ISDS) has featured high in newspaper headlines, parliamentary debates, and even in mass street protests in some EU Member States. The reasons for such sudden, unusual attention are manifold. In such situation, it does not come as a big surprise that also the judiciary is eventually seized with the matter.

In its recent Opinion on the EU-Singapore Free Trade Agreement, the Court of Justice of the European Union (CJEU) touched upon the Agreement’s ISDS provisions. While the CJEU postponed the ultimate showdown between the two ‘competitors’ in dispute resolution, new opportunities will surely arise. One can expect that the CJEU will then not have forgotten about the ‘reluctance’ arbitrators have shown to grant the Court its worthy and rightful place in the administration of justice in investment cases.

This seminar will not only sketch recent developments in the EU’s Common Commercial Policy in the area of investment, but also seeks to shed light on the instruments the CJEU has at hand to define its relationship towards the adjudicative bodies established on the basis of EU free trade agreements. The spectrum ranges from cooperation, to coexistence, to opposition. The seminar will look at the conditions and limits stipulated by the Treaties upon which the European Union is founded, i.e. the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), under which it can submit itself to investor-State arbitration. In this respect, the issue of distribution of competences between the Member States and the Union in the area of foreign investment has more widely been discussed and was recently decided upon by the Court in its Singapore-Opinion. When it comes to the establishment of dispute resolution bodies in international agreements concluded by the EU, there is, however, another crucial touchstone, i.e. the concept of autonomy of EU law. The role of this concept, mainly developed in a series of opinions of the Court, in limiting the Union’s ‘leeway’ in subjecting itself to the current model of investor-State arbitration has so far not been further defined by the CJEU and will form the focal point of this talk. To complete the picture and to embed the aforesaid analysis some remarks should also be made on an additional emerging constitutional stumbling block for the EU’s intention to wholeheartedly embrace ISDS, i.e. the possible restrictions flowing from the rule of law principle in EU primary law on transferring jurisdiction from Member State and EU courts onto arbitral tribunals in matters of control of public authority.

Professor Steffen Hindelang is currently guest researcher at the Faculty of Law of the University of Uppsala as a Riksbankens Jubileumsfond – Alexander von Humboldt Stiftung Swedish Prize Laureate. At his home institution of the Department of Law of Freie Universität Berlin he teaches and researches in the areas of international economic law, esp. international investment law, EU law and German public law. He is also senior fellow at the Walter Hallstein Institute of European Constitutional Law at Humboldt-Universität zu Berlin and academic advisor to the International Investment Law Centre Cologne (IILCC). Furthermore, he advised, inter alia, European governments in international investment disputes and international organisations, such as UNCTAD, on matters of reform of the current international investment law regime. He was repeatedly invited by the European Parliament’s INTA Committee to prepare studies on the evolvement of the EU Common Commercial Policy in the area of investment.

Time: Monday 16 October 2017, 16-17

Location: Faculty Room, 8th floor, Juridicum, Stockholm University

Registration: Please register online or with asnate.maddalo@juridicum.su.se no later than Thursday 12 October 2017.

Refreshments will be available to registered participants after the seminar.
Should you have any special requirements or allergies please inform us when registering.

Warm welcome!
Jaan Paju

Detta seminarium ägde rum den den 16 oktober 2017