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The EU as an actor shaping the future of ISDS: Unveiling the interplay between the clash of two autonomies and the reform of investor-State arbitration

Dates:
  • Fri 14 Feb 2020 10.30 - 12.30
  Add to Calendar 2020-02-14 10:30 2020-02-14 12:30 Europe/Paris The EU as an actor shaping the future of ISDS: Unveiling the interplay between the clash of two autonomies and the reform of investor-State arbitration

This thesis examines the manifestations of the clash between two competing regimes: EU law, on the one hand, and international (in particular, investor-State) arbitration on the other. This examination (approached through the lens of the respective contradicting claims of autonomy) reveals the interrelation between this clash and the current initiatives to reform ISDS. The first part of this thesis is devoted to the EU interference with international arbitration at the intra-EU level. It maps out the intra-EU BITs controversy focusing, first, on the general issue of compatibility of intra-EU ISDS with EU law in the aftermath of the Achmea judgment and, second, on the specific issue of the intra-EU face of the ECT. The future of enforcement of investment arbitral awards in the EU emerges as the lynchpin of the controversy. In the second part, the focus shifts to the developments at the extra-EU level. The thesis reflects on the EU competence on FDI and underscores the decisive way in which the EU has shaped its policy towards ISDS. The EU initiative vis-à-vis the issue of screening inward FDI (FDI Screening Regulation) is also teased out foreshadowing future controversies. With the contours of the competence in mind, and after reflecting on the main critiques against investor-State arbitration, as they are mirrored in the EU-led initiatives, the proposal for the establishment of a(n) multilateral investment court system is discussed in detail. The thesis explores the internal questions of compatibility with EU law (Opinion 1/17) and also discusses the (de-)merits of a court solution as ‘the’ corporate governance of investor-state disputes in the future. 

Sala del Torrino - Villa Salviati- Castle DD/MM/YYYY
  Sala del Torrino - Villa Salviati- Castle

This thesis examines the manifestations of the clash between two competing regimes: EU law, on the one hand, and international (in particular, investor-State) arbitration on the other. This examination (approached through the lens of the respective contradicting claims of autonomy) reveals the interrelation between this clash and the current initiatives to reform ISDS. The first part of this thesis is devoted to the EU interference with international arbitration at the intra-EU level. It maps out the intra-EU BITs controversy focusing, first, on the general issue of compatibility of intra-EU ISDS with EU law in the aftermath of the Achmea judgment and, second, on the specific issue of the intra-EU face of the ECT. The future of enforcement of investment arbitral awards in the EU emerges as the lynchpin of the controversy. In the second part, the focus shifts to the developments at the extra-EU level. The thesis reflects on the EU competence on FDI and underscores the decisive way in which the EU has shaped its policy towards ISDS. The EU initiative vis-à-vis the issue of screening inward FDI (FDI Screening Regulation) is also teased out foreshadowing future controversies. With the contours of the competence in mind, and after reflecting on the main critiques against investor-State arbitration, as they are mirrored in the EU-led initiatives, the proposal for the establishment of a(n) multilateral investment court system is discussed in detail. The thesis explores the internal questions of compatibility with EU law (Opinion 1/17) and also discusses the (de-)merits of a court solution as ‘the’ corporate governance of investor-state disputes in the future. 


Location:
Sala del Torrino - Villa Salviati- Castle

Affiliation:
Department of Law

Type:
Thesis defence

Defendant:
Maria Fanou (EUI - Law)

Examiner:
Mathias Siems (EUI)
Dr. Markus Gehring (University of Cambridge)
Professor Maxi Scherer (Queen Mary University of London)

Supervisor:
Professor Emeritus Marise Cremona (EUI - Law Department)

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