EU Law and International Investment Arbitration: The compatibility of ISDS in Bilateral Investment Treaties (BITs) and the Energy Charter Treaty (ECT) with the autonomy of EU law: Nijhoff Studies in European Union Law, cartea 21
Autor Michael De Boecken Limba Engleză Hardback – 6 iul 2022
Din seria Nijhoff Studies in European Union Law
- 18%
Preț: 842.36 lei - 18%
Preț: 871.63 lei - 18%
Preț: 748.42 lei - 18%
Preț: 926.81 lei - 18%
Preț: 812.96 lei - 18%
Preț: 961.42 lei - 18%
Preț: 971.31 lei - 18%
Preț: 852.65 lei - 18%
Preț: 763.06 lei - 18%
Preț: 1185.52 lei - 18%
Preț: 832.88 lei - 18%
Preț: 963.07 lei - 18%
Preț: 1035.93 lei - 18%
Preț: 712.65 lei - 18%
Preț: 1028.75 lei - 18%
Preț: 857.61 lei - 18%
Preț: 985.58 lei
Preț: 1056.86 lei
Preț vechi: 1288.85 lei
-18% Nou
Puncte Express: 1585
Preț estimativ în valută:
202.33€ • 210.31$ • 167.75£
202.33€ • 210.31$ • 167.75£
Carte indisponibilă temporar
Doresc să fiu notificat când acest titlu va fi disponibil:
Se trimite...
Preluare comenzi: 021 569.72.76
Specificații
ISBN-13: 9789004501645
ISBN-10: 9004501649
Dimensiuni: 155 x 235 mm
Greutate: 0.84 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff Studies in European Union Law
ISBN-10: 9004501649
Dimensiuni: 155 x 235 mm
Greutate: 0.84 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff Studies in European Union Law
Notă biografică
Michael De Boeck, Ph.D. (2020), Ghent & Luxembourg University, is academic doctor-assistant at the College of Europe and attorney in Ghent, BE (2014), New York, USA (2017). He publishes regularly on EU law and international commercial and investment arbitration.
Cuprins
Acknowledgements
Acronyms
Introduction
1The Contemporary State of isds and International Investment Law Conflicts Among Calls for Reform
1 The Turbulent Global Context of Investment Arbitration
2 The European Union as an Emerging Actor in International Investment Policy
3 Conflict between EU Law and International Investment Law
3.1Substantive Conflict
3.2Jurisdictional Conflict
2Beyond Achmea The Open Question in EU Law and isds
1 Towards Consolidation under the Common Commercial Policy?
1.1Extra-EU BITs
1.2The Energy Charter Treaty
2 The ‘Frame of Reference’ Problem
part 1
isds and EU Law from the Perspective of International Law
3Harmonious Interpretation between iia’s and the EU Treaties
1 The Public International Law Framework of Harmonious Treaty Interpretation
2 The ect Implied Disconnection Clause as Harmonious Treaty Interpretation?
2.1The Scope of ‘Investor’ and ‘Contracting Parties’ of the ect
2.2Context of the ect’s Conclusion
3 The Limits of Contextual and Systemic Treaty Interpretation
4The Principles and Norms of Treaty Conflicts
1 The Foundations of Treaty Law: Pacta Sunt Servanda and Relativity of Treaty Obligations
2 EU Accession as a Fundamental Change of Circumstances?
3 iia’s and the EU Treaties under Conflict Norms of Same Subject Matter Successive Treaties:
3.1Implied Treaty Termination by Conclusion of a Successive Treaty
3.1.1 The Notion of ‘Successive Treaties’ Relating to the ‘Same Subject Matter’
3.1.2 Article 59(1) vclt: Intention to Terminate the Prior Treaty
3.1.3 The Failure of Express Notification by the EU Member States under Article 65 vclt
3.2Conflict between Successive Same Subject Treaty Provisions
3.2.1 The Notions of ‘Successive Treaties’ Relating to ‘the Same Subject Matter’ and Treaty ‘Conflict’
3.2.2 Increasing Successive Treaty Membership: Article 30(3) vclt
3.2.3 Decreasing Successive Treaty Membership and Diversity of Contracting Parties: Inter se Modification (Article 41 vclt) or Successive Conflict (Article 30(4) vclt)
4 Conventional Treaty Conflict of Laws Clauses
4.1Member State bit s: Lack of Express Conflict Clauses
4.2The EU Treaties
4.3Energy Charter Treaty: Article 16 ect
4.4Express Disconnection Clauses
Conclusions on Part 1
part 2
isds and EU Law from the Perspective of the European Union
5EU and Member States’ Competence on Foreign Direct Investment
1 The Common Commercial and Investment Policy
2 Scope of the Common Commercial and Investment Policy
2.1Substantive Investment Protection Standards
2.2Arbitration Provisions: isds
6The Status of International Agreements in the EU Legal Order The EU Law Effects of Extra-EU BITs and the Energy Charter Treaty
1 EU Law and Member States’ Legal Orders
2 EU Law and Member States’ International Agreements
2.1The icsid Convention in EU Law
2.2Extra-EU BITs
3 EU Agreements in the Member States’ Legal Orders
4 The Special Case of EU Mixed Agreements
4.1The Rationales and Problems of Mixity
4.2The Energy Charter Treaty
4.2.1 The Irrelevance of the EU as a Contracting Party to the Determination of Its Compatibility with the EU Treaties
4.2.2 The EU’s Involvement in the Conclusion of the Energy Charter Treaty: a Particular Focus on (In)stability of the Central Eastern Neighbours
4.2.3 EU Law Effects of the ect
7Conflict Norms of EU law
1 Limited Conflict Rules in the EU Treaties
1.1Primacy as Implicit Conflict Rule
1.2Express Conflict Rules: Articles 350 and 351 tfeu
2 Article 351 tfeu: Member States’ International Obligations as Derogations from EU Law
2.1The Scope of Article 351 tfeu
2.1.1 Article 351 (1) tfeu: Derogations from EU Law for Pre-existing Member State Agreements.
2.1.2 Article 351(2) tfeu: Obligation to Take All Necessary Measures
2.1.3 Outer Limits to Derogable Obligations of EU Law
2.2Conclusion on Article 351 tfeu
3 EU Primacy over Member States’ Posterior International Agreements
3.1International Investment Agreements Concluded between EU Member States
3.2International Investment Agreements between EU Member States and Third States
Conclusions on Part 2
part 3
The Autonomy of EU Law and isds
8The Particularity of Autonomy in Relation to the EU
9The Lacking Definition of EU Law Autonomy
1 The Sui Generis Claim:
2 The Rule of Law Claim
3 The Integrity Claim
10The Compatibility of isds Provisions in the ect and Extra-EU BITs with the Autonomy of EU Law
1 The Division of Competences between the Member States and the EU
1.1Compatibility of the ect with the EU’s Division of Competences
1.2Compatibility of Extra-EU BIT with the Division of Competences between the EU and the Member States
1.2.1 The Grandfather Regulation
1.2.2 Conclusion
2 The Allocation of Tasks and Powers to the EU Institutions Including the System of Judicial Review
2.1Allocations of Responsibility, Attribution and the Impermissible Interpretation of the Division of Competences under EU Law
2.1.1 The Determination of Respondents and the Allocation of Responsibility under the ect Binds the EU to an Interpretation of EU Law
2.1.2 Irrelevance to Intra- and Extra-EU BITs
2.2The Uniform Interpretation of EU Law and Allocation of Judicial Powers
2.2.1 The Haegeman Track: Binding Interpretations of EU Law
2.2.2 The ‘Allocation of Powers’ -Track
2.2.3 Combining Both: Articulation of the EU Judicial System
2.2.4 Conclusions on the ect
2.2.5 Conclusion on the (Extra-EU) BITs
3 Compatibility with the Principle of Equal Treatment and Non-discrimination
3.1Equal Treatment in National Courts and isds? The Benefit of “Choice”
3.2Extra-EU BITs
3.2.1 Outbound perspective
3.2.2 Inbound Perspective
3.3The ect
11Excursus: The Consolidation of Member States’ fdi Policies Termination and Succession
1 The Fate of Intra-EU BITs Post-Achmea
1.1The Road to the Political Agreement on Termination
1.2The Intra-EU BIT Plurilateral Termination Treaty
1.2.1 Objectives, Structure and Entry into Force
1.2.2 Termination of intra-eu bit ‘Sunset’ or ‘Survival’ Clauses
1.3Towards an Intra-EU Investment Court?
2 The Fate of Extra-EU BITs: Consolidation and Succession
3 The Energy Charter Treaty: Future Outlook?
3.1Opinion 1/20: A Prior Opinion on the Modernised ect Treaty
Conclusions on Part 3
Final Conclusions and Outlook
Bibliography
Index
Acronyms
Introduction
1The Contemporary State of isds and International Investment Law Conflicts Among Calls for Reform
1 The Turbulent Global Context of Investment Arbitration
2 The European Union as an Emerging Actor in International Investment Policy
3 Conflict between EU Law and International Investment Law
3.1Substantive Conflict
3.2Jurisdictional Conflict
2Beyond Achmea The Open Question in EU Law and isds
1 Towards Consolidation under the Common Commercial Policy?
1.1Extra-EU BITs
1.2The Energy Charter Treaty
2 The ‘Frame of Reference’ Problem
part 1
isds and EU Law from the Perspective of International Law
3Harmonious Interpretation between iia’s and the EU Treaties
1 The Public International Law Framework of Harmonious Treaty Interpretation
2 The ect Implied Disconnection Clause as Harmonious Treaty Interpretation?
2.1The Scope of ‘Investor’ and ‘Contracting Parties’ of the ect
2.2Context of the ect’s Conclusion
3 The Limits of Contextual and Systemic Treaty Interpretation
4The Principles and Norms of Treaty Conflicts
1 The Foundations of Treaty Law: Pacta Sunt Servanda and Relativity of Treaty Obligations
2 EU Accession as a Fundamental Change of Circumstances?
3 iia’s and the EU Treaties under Conflict Norms of Same Subject Matter Successive Treaties:
3.1Implied Treaty Termination by Conclusion of a Successive Treaty
3.1.1 The Notion of ‘Successive Treaties’ Relating to the ‘Same Subject Matter’
3.1.2 Article 59(1) vclt: Intention to Terminate the Prior Treaty
3.1.3 The Failure of Express Notification by the EU Member States under Article 65 vclt
3.2Conflict between Successive Same Subject Treaty Provisions
3.2.1 The Notions of ‘Successive Treaties’ Relating to ‘the Same Subject Matter’ and Treaty ‘Conflict’
3.2.2 Increasing Successive Treaty Membership: Article 30(3) vclt
3.2.3 Decreasing Successive Treaty Membership and Diversity of Contracting Parties: Inter se Modification (Article 41 vclt) or Successive Conflict (Article 30(4) vclt)
4 Conventional Treaty Conflict of Laws Clauses
4.1Member State bit s: Lack of Express Conflict Clauses
4.2The EU Treaties
4.3Energy Charter Treaty: Article 16 ect
4.4Express Disconnection Clauses
Conclusions on Part 1
part 2
isds and EU Law from the Perspective of the European Union
5EU and Member States’ Competence on Foreign Direct Investment
1 The Common Commercial and Investment Policy
2 Scope of the Common Commercial and Investment Policy
2.1Substantive Investment Protection Standards
2.2Arbitration Provisions: isds
6The Status of International Agreements in the EU Legal Order The EU Law Effects of Extra-EU BITs and the Energy Charter Treaty
1 EU Law and Member States’ Legal Orders
2 EU Law and Member States’ International Agreements
2.1The icsid Convention in EU Law
2.2Extra-EU BITs
3 EU Agreements in the Member States’ Legal Orders
4 The Special Case of EU Mixed Agreements
4.1The Rationales and Problems of Mixity
4.2The Energy Charter Treaty
4.2.1 The Irrelevance of the EU as a Contracting Party to the Determination of Its Compatibility with the EU Treaties
4.2.2 The EU’s Involvement in the Conclusion of the Energy Charter Treaty: a Particular Focus on (In)stability of the Central Eastern Neighbours
4.2.3 EU Law Effects of the ect
7Conflict Norms of EU law
1 Limited Conflict Rules in the EU Treaties
1.1Primacy as Implicit Conflict Rule
1.2Express Conflict Rules: Articles 350 and 351 tfeu
2 Article 351 tfeu: Member States’ International Obligations as Derogations from EU Law
2.1The Scope of Article 351 tfeu
2.1.1 Article 351 (1) tfeu: Derogations from EU Law for Pre-existing Member State Agreements.
2.1.2 Article 351(2) tfeu: Obligation to Take All Necessary Measures
2.1.3 Outer Limits to Derogable Obligations of EU Law
2.2Conclusion on Article 351 tfeu
3 EU Primacy over Member States’ Posterior International Agreements
3.1International Investment Agreements Concluded between EU Member States
3.2International Investment Agreements between EU Member States and Third States
Conclusions on Part 2
part 3
The Autonomy of EU Law and isds
8The Particularity of Autonomy in Relation to the EU
9The Lacking Definition of EU Law Autonomy
1 The Sui Generis Claim:
2 The Rule of Law Claim
3 The Integrity Claim
10The Compatibility of isds Provisions in the ect and Extra-EU BITs with the Autonomy of EU Law
1 The Division of Competences between the Member States and the EU
1.1Compatibility of the ect with the EU’s Division of Competences
1.2Compatibility of Extra-EU BIT with the Division of Competences between the EU and the Member States
1.2.1 The Grandfather Regulation
1.2.2 Conclusion
2 The Allocation of Tasks and Powers to the EU Institutions Including the System of Judicial Review
2.1Allocations of Responsibility, Attribution and the Impermissible Interpretation of the Division of Competences under EU Law
2.1.1 The Determination of Respondents and the Allocation of Responsibility under the ect Binds the EU to an Interpretation of EU Law
2.1.2 Irrelevance to Intra- and Extra-EU BITs
2.2The Uniform Interpretation of EU Law and Allocation of Judicial Powers
2.2.1 The Haegeman Track: Binding Interpretations of EU Law
2.2.2 The ‘Allocation of Powers’ -Track
2.2.3 Combining Both: Articulation of the EU Judicial System
2.2.4 Conclusions on the ect
2.2.5 Conclusion on the (Extra-EU) BITs
3 Compatibility with the Principle of Equal Treatment and Non-discrimination
3.1Equal Treatment in National Courts and isds? The Benefit of “Choice”
3.2Extra-EU BITs
3.2.1 Outbound perspective
3.2.2 Inbound Perspective
3.3The ect
11Excursus: The Consolidation of Member States’ fdi Policies Termination and Succession
1 The Fate of Intra-EU BITs Post-Achmea
1.1The Road to the Political Agreement on Termination
1.2The Intra-EU BIT Plurilateral Termination Treaty
1.2.1 Objectives, Structure and Entry into Force
1.2.2 Termination of intra-eu bit ‘Sunset’ or ‘Survival’ Clauses
1.3Towards an Intra-EU Investment Court?
2 The Fate of Extra-EU BITs: Consolidation and Succession
3 The Energy Charter Treaty: Future Outlook?
3.1Opinion 1/20: A Prior Opinion on the Modernised ect Treaty
Conclusions on Part 3
Final Conclusions and Outlook
Bibliography
Index