Groningen Journal of International Law

International Law Under Construction

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The Dichotomy Between European Union Law and International Law: Responses to the Achmea Judgment of the European Court of Justice

Cees Verburg |

In March 2018 the Court of Justice of the European Union (CJEU) ruled in a preliminary procedure that the investor-State arbitration clause contained in the Netherlands-Slovakia Bilateral Investment Treaty (BIT) was incompatible with primary European Union (EU) law. Due to the language employed by the CJEU, this ruling casts doubt over investor-State arbitration clauses in nearly 200 existing BITs concluded between EU Member States as well as the intra-EU applicability of the arbitration clause of the multilateral Energy Charter Treaty (ECT) to which the EU itself is a Contracting Party.

In a blog post written a week after the judgment I argued that one should not expect that international arbitration tribunals constituted under the existing intra-EU investment treaties will suddenly decline jurisdiction because of the CJEU judgment. This blogpost aims at providing an overview of the subsequent developments in relation to the above–mentioned Achmea judgment and the consequences that this judgment entails for intra-EU investor-State arbitration on the basis of investment treaties.

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International Arbitration & the Remedy Gap for Victims of Business-Related Human Rights Abuses

 Prof. Katerina Yiannibas |

In a legal utopia, every jurisdiction in the world could boast of efficient and affordable access to justice that would provide appropriate remedy to victims of human rights abuses. There would be equal protection and enforcement of international human rights, responsible cross-border business conduct, fair and unbiased adjudicative processes with effective assistance of counsel, and never any reprisals against victims or their defenders. Regrettably, this is not the world we live in. The contemporary legal reality instead evidences widespread legal and practical barriers to access remedy for victims of business-related human rights abuses.

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The Mauritius Convention’s Entry Into Force: High Hopes with Little Impact?

By Erica Duffy, University of

There is a current trend in investor-State dispute settlement (ISDS) towards ensuring more transparent and open proceedings. This development is a direct response to the backlash in recent years from civil society, who often considers investment arbitration to lack legitimacy. One such initiative to increase transparency in ISDS are the UNCITRAL Rules on Transparency, which were adopted in order to provide for a straightforward mechanism for States to apply consistent standards in investor-State proceedings. The UN Convention on Transparency in Treaty-based Investor-State Arbitration (“The Mauritius Convention on Transparency”) will soon enter into force. The Convention makes the UNCITRAL rules compulsory for BITs and trade agreements with investment chapters that have been concluded in the past, thus, having the potential to simultaneously amend thousands of international investment agreements. In the first two years of its existence very few countries seem willing to ratify or even sign the Convention.  Continue reading