Views
A European Law Reading of Achmea
Written by Prof. Burkhard Hess, Max Planck Institute Luxembourg.
An interesting perspective concerning the Achmea judgment of the ECJ[1] relates to the way how the Court addresses investment arbitration from the perspective of European Union law. This paper takes up the judgment from this perspective. There is no doubt that Achmea will disappoint many in the arbitration world who might read it paragraph by paragraph while looking for a comprehensive line of arguments. Obviously, some paragraphs of the judgment are short (maybe because they were shortened during the deliberations) and it is much more the outcome than the line of arguments that counts. However, as many judgments of the ECJ, it is important to read the decision in context. In this respect, there are several issues to be highlighted here: Read more
CJEU on the compatibility with EU law of an arbitration clause in an Intra-EU BIT – Case C-284/16 (Slovak Republic v Achmea BV)
Written by Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany
Today, the CJEU has rendered its judgement in Slovak Republic v Achmea BV (Case C-284/16). The case concerned the compatibility with EU law of a dispute clause in an Intra-EU Bilateral Investment Treaty (BIT) between the Netherlands and the Slovak Republic which grants an investor the right to bring proceedings against the host state (in casu: the Slovak Republic) before an arbitration tribunal. In concrete terms, the German Federal Court of Justice referred the following three questions to the CJEU (reported here): Read more
The impact of Brexit on the operation of the EU legislative measures in the field of private international law
On 28 February 2018, the European Commission published the draft Withdrawal Agreement between the EU and the UK, based on the Joint Report from the negotiators of the two parties on the progress achieved during the first phase of the Brexit negotiations.
The draft includes a Title VI which specifically relates to judicial cooperation in civil matters. The four provisions in this Title are concerned with the fate of the legislative measures enacted by the EU in this area (and binding on the UK) once the “transition of period” will be over (that is, on 31 December 2020, as stated in Article 121 of the draft).
Article 62 of the draft provides that, in the UK, the Rome I Regulation on the law applicable to contracts and the Rome II Regulation on the law applicable to non-contractual obligations will apply, respectively, “in respect of contracts concluded before the end of the transition period” and “in respect of events giving rise to damage which occurred before the end of the transition period”.
Article 63 concerns the EU measures which lay down rules on jurisdiction and the recognition and enforcement of decisions. These include the Brussels I bis Regulation on civil and commercial matters (as “extended” to Denmark under the 2005 Agreement between the EC and Denmark: the reference to Article 61 in Article 65(2), rather than Article 63, is apparently a clerical error), the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility, and Regulation No 4/2009 on maintenance.
According to Article 63(1) of the draft, the rules on jurisdiction in the above measures will apply, in the UK, “in respect of legal proceedings instituted before the end of the transition period”. However, under Article 63(2), in the UK, “as well as in the Member States in situations involving the United Kingdom”, Article 25 of the Brussels I bis Regulation and Article 4 of the Maintenance Regulation, which concern choice-of-court agreements, will “apply in respect of the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period”(no elements are provided in the draft to clarify the notion of “involvement”, which also occurs in other provisions).
As regards recognition and enforcement, Article 63(3) provides that, in the UK and “in the Member States in situations involving the United Kingdom”, the measures above will apply to judgments given before the end of the transition period. The same applies to authentic instruments formally drawn up or registered, and to court settlements approved or concluded, prior to the end of such period.
Article 63 also addresses, with the necessary variations, the issues surrounding, among others, the fate of European enforcement orders issued under Regulation No 805/2004, insolvency proceedings opened pursuant to the Recast Insolvency Regulation, European payment orders issued under Regulation No 1896/2006, judgments resulting from European Small Claims Procedures under Regulation No 861/2007 and measures of protection for which recognition is sought under Regulation No 606/2013.
Article 64 of the draft lays down provisions in respect of the cross-border service of judicial and extra-judicial documents under Regulation No 1393/2007 (again, as extended to Denmark), the taking of evidence according to Regulation No 1206/2001, and cooperation between Member States’ authorities within the European Judicial Network in Civil and Commercial Matters established under Decision 2001/470.
Other legislative measures, such as Directive 2003/8 on legal aid, are the object of further provisions in Article 65 of the draft.
News
IEAF Call for Papers: The Perpetual Renewal of European Insolvency Law
The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place from Wednesday 11 – Thursday 12 October 2023 in Amsterdam (the Netherlands). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “The Perpetual Renewal of European Insolvency Law”.
The conference is intended to focus on, inter alia, the following overall topics:
- Public and social policy and the impact on corporate rescue, and vice versa
- Cross-border issues (recognition, coordination)
- Asset tracing (including crypto assets)
- Competition for cases as a driving force for legislative reform
- International organisations update
- Sustainability and corporate restructuring
- Environmental claims in insolvency
- Transaction avoidance eclipsed in preventive restructuring procedures
- Pre-packs rehabilitated
- Asset partitioning: prudent entrepreneurship or manifestation of opportunism
- Modern issues surrounding directors’ duties to file for insolvency
- The impact and benefit (or not) of creditors’ committees
- EU Preventive Restructuring Directive
The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.
Conference methodology
In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions within the above broadly defined theme. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. Contributions must be in English.
Presenting at the IEAF conference
Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant.
Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants are available for junior scholars invited to present.
For further information, see: www.insol-europe.org/academic-forum-events
The New Age of Dispute Resolution: Digitization & Evolving Norms
The New Age of Dispute Resolution: Digitization & Evolving Norms
Time: 18:30 – 20:30 pm
Venue: Bracewell LLP New York
When: 13 February Monday 2023
Organized with New York International Arbitration Centre, New York State Bar Association, and American Society of International Law
The event will be held in relation to UNCITRAL’s project on the Stocktaking of Dispute Resolution in the Digital Economy. As part of its stocktaking activities to seek inputs from different parts of the world, the Secretariat is organising this discussion with practitioners and academics in New York on two respective issues: (1) the use of technology in arbitration; and (2) online mediation. Presenters: (Panel 1) Christina Hioureas, Emma Lindsay, Hagit Muriel Elul, Martin Guys and Sherman W. Kahn; (Panel 2) Jackie Nolan-Haley and Sherman W. Kahn.
Sustainable European private international law – the SEPIL perspective
This post was written by Jachin Van Doninck (SEPIL coordinator, Vrije Universiteit Brussels) and Jerca Kramberger Škerl (University of Ljubljana)
It is fair to say that the attention for sustainability and sustainable development has seen a steady increase. The past decade, the United Nations has set out the Sustainable Development Goals (SDGs), based on the urgent need to shift the world onto a sustainable and resilient path. These SDGs are finding their way into policy making on every level and are also inspiring research in the legal field.[i] Recent scholarship has raised awareness for the potential of private international law to strengthen the SDGs’ plan of action (e.g. the seminal work edited by R. MICHAELS, V. RUIZ ABOU-NIGM and H. VAN LOON, 2021).[ii] Private International Law is also and increasingly being classified as a governance tool[iii] of a political nature.[iv]
The SEPIL network, funded by the EUTOPIA UNIVERSITY alliance explores the sustainability of European private international law as a system, i.e. in itself. Thus, the project’s intention was to move away from existing research on how private international law can be instrumentalized for the purpose of attaining the greater good (e.g. the Shell cases in The Netherlands and in the UK, reported on the conflictoflaws blog), and to question to what extent sustainability can (or must) exert a system-building function within this area of the law. Taking into account that PIL acts as potent tool for achieving the SDGs, the research group delved into the question of the sustainability of this tool in itself, thus ‘operating’ mainly within the SDG 16 (Peace, Justice and Strong Institutions).
SEPIL organised two closed seminars in Ljubljana (29-30 September 2022) and Brussels (24-25 October 2022). The goals of the meetings were threefold:
- to catch up with the state of the art of the research on sustainability and law, both regarding the individual SDGs and the sustainability of law;
- to try to delimitate the question(s) of PIL as a tool to achieve sustainable development and sustainability as a tool to enhance PIL;
- to explore the research potential of the aforementioned SEPIL idea.
The Ljubljana edition was kicked off by Anna Maria Wilmot (VUB), who presented an outline of her current PhD research on the interplay between sustainability and the Belgian system of civil adjudication. She explained how any attempt at a systemic appraisal of the sustainability of European private international law would have to begin with a clear understanding of sustainability as a layered concept. Jachin Van Doninck (also at VUB) connected Anna Maria’s research with the SEPIL project by elaborating on how legal scholarship and the courts are heavily involved in instrumentalizing private international law for the purpose of attaining sustainability and sustainable development. He pointed out that a fundamental analysis of the sustainability of private international law itself is lacking, which is precisely where SEPIL’s research focus would lie. University of Ljubljana’s Jerca Kramberger Škerl continued with an overview of the UN Sustainable Development Goals and a short presentation on how private international law can, first, serve as a tool to attain those goals, and second, adapt itself to respect those goals. In the afternoon, these SDGs were made concrete through topical examples. A first one was offered by University of Gothenburg’s Anna Wallerman Ghavanini through her presentation on judicial protection for victims of discrimination in EU private international law, explaining that effective access to justice (SDG 16) for victims of discrimination (SDG 5) reveals shortcomings in the current private international law framework. Second, University of Ljubljana’s Filip Dougan focused on the interplay between the UN Sustainable Development Goal 5 (Gender Equality) and the EU private international law. Erik Björling, also from the University of Gothenburg, then challenged our thinking with the question “Can retrospective civil procedure be prospective?”. Using notions of procedural legal theory (naming, blaming, claiming, rational discourse, reduction of complexity), he touched on several core issues of private international law such as jurisdiction, choice of law and enforcement. The stage had been set for the Brussels edition.