Category: Articles

Advisory Centre on International Investment Law and Need for Consensus

by Tetyana Makukha[1] Between 9-13 October 2023, the 46th Session of UNCITRAL Working Group III took place in Vienna, Austria. The EFILA attended the session in its capacity as an observer organisation. Three first days of the Session were fully devoted to discussing draft provisions on the establishment of an advisory centre on international investment… Read More Advisory Centre on International Investment Law and Need for Consensus

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Is Portugal’s Huawei Ban Compatible with its Investment Treaty Obligations?

by Pacôme Ziegler [1] States walk a tightrope when the protection of the general interest requires encroaching upon private interests, as it often does. Should they fail in this balancing act, effective redress may be available to aggrieved private investors under the applicable investment treaty. Investors do not hesitate to avail themselves of this avenue… Read More Is Portugal’s Huawei Ban Compatible with its Investment Treaty Obligations?

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Revisiting the Blusun dictum: A Roadmap for a Proportionality Analysis of the Breach of Stability in the Fair and Equitable Treatment Standard

By Cristian Gallorini[1] Legal stability and predictability are core elements of the rule of law. In the case of foreign investments in renewable energy (RE) the concept of stability imbues distinct aspects of the investment cycle, including the arbitrability of disputes. First, stability of the investment conditions is fundamental to foreign investors. Second, International Investment… Read More Revisiting the Blusun dictum: A Roadmap for a Proportionality Analysis of the Breach of Stability in the Fair and Equitable Treatment Standard

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Germany’s Highest Civil Court Affirms “Primacy of Application of Union Law – Also Vis-à-Vis Public International Law” in Intra-EU Investment Arbitration

By Agata Daszko[1] On 27 July 2023, Germany’s Federal Court of Justice (Bundesgerichtshof or BGH) issued a long-awaited decision (I ZB 43/22, I ZB 74/22 and I ZB 75/22) pertaining to intra-EU arbitration on the basis of the Energy Charter Treaty (“ECT”). The decision? “Upstream national legal protection is possible against intra-EU investor-State ICSID arbitral… Read More Germany’s Highest Civil Court Affirms “Primacy of Application of Union Law – Also Vis-à-Vis Public International Law” in Intra-EU Investment Arbitration

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BayWa v Spain: No annulment for old objections

By Anastasia Choromidou[1] and Mark Konstantinidis[2] In May 2023, an ICSID ad hoc committee contributed the latest episode to the Spanish solar arbitration saga, by rejecting Spain’s arguments based on the CJEU Komstroy ruling on intra-EU arbitration. The BayWa v Spain annulment decision reflects the tense, from a doctrinal and institutional perspective, relationship between EU… Read More BayWa v Spain: No annulment for old objections

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Don’t infer adverse inferences – the curious omission of adverse inferences from the 2022 ICSID Arbitration Rules

By: Alexander A. Witt[1] Following a consultation process that lasted more than five years and produced six working papers reflecting the development of the draft provisions, the 2022 ICSID Arbitration Rules (the “2022 Rules”) came into force on 1 July 2022. The 2022 Rules are a complete overhaul of their predecessor, the 2006 ICSID Arbitration… Read More Don’t infer adverse inferences – the curious omission of adverse inferences from the 2022 ICSID Arbitration Rules

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