Published on 20 May 2021 in Uncategorised

Webinar – Is Brexit the saviour of the UK’s EU investment treaties?

The 6 March 2018 judgment of the Court of Justice of the European Union in Slovak Republic v. Achmea is widely regarded as casting serious doubts on the compatibility with EU law of investor-State arbitration clauses in intra-EU BITs.  The precise scope of incompatibility, and the status of this decision in public international law, continue to give rise to intense debate.  Leaving that debate aside, this webinar focuses on a related question:  how – if at all – does Brexit affect the issue?  Are EU-UK BITs still tainted with Achmea incompatibility, or has Brexit saved them?  And what of the Energy Charter Treaty?  Assuming the correctness of the European Commission’s position that the reasoning underlying Achmea applies equally to the ECT in its capacity as an intra-EU investment treaty, does it also apply to EU-UK investment disputes under the Treaty?

These questions are highly relevant to (a) UK investors wishing to make claims against EU member States under EU-UK BITs or the ECT; (b) EU investors wishing to make claims against the UK on the same basis; and (c) the UK government, which is currently the subject of infringement proceedings before the CJEU on the basis of its alleged failure to terminate EU-UK BITs, allegedly in violation of its Achmea obligations.

 

The speakers for this webinar were:

Ms Anna Bilanová, Deputy Head of International Arbitration and Protection of Foreign Investments Unit at the Ministry of Finance in the Czech Republic.  In her role, Ms Bilanová has been involved in the representation of the Czech Republic in investment arbitration cases, negotiation of BITs, representation of the Republic in the EU institutions (Trade Policy Committee Services and Investment and expert groups relating to the intra-EU investments, including the preparation of the termination treaty) and international organisations, notably UNCITRAL (WG II and III) and ICSID (rule amendments process).  She is a graduate of the Master in International Dispute Settlement (MIDS) in Geneva and the Faculty of Law of Masaryk University in Brno (including an exchange at the University of Fribourg).

Dr Joel Dahlquist, Counsel with Arbitration Chambers in London.  Dr Dahlquist works as secretary to arbitral tribunals in large-scale commercial and investment treaty arbitrations.  Prior to this role, Dr Dahlquist was a full-time academic at Uppsala University for five years, where he taught private and public international law, international investment law and international commercial arbitration.  He also worked as editor of Investment Arbitration Reporter, where among other things he covered the interaction between the European Union and international investment law.  Dr Dahlquist is Swedish and has for several years advised his home State on matters of international investment law and arbitration.  His book The Use of Commercial Arbitration Rules in Investment Treaty Disputes was recently published by Brill.

Ms Aikaterini Florou, an Adjunct Assistant Professor at the Fletcher School of Law and Diplomacy and an Alexander von Humboldt Fellow at the University of Hamburg.  Ms Florou is also the Associate Editor of the Journal of World Energy Law & Business.  Previously, she worked for several years as a legal and policy officer with the European Commission in the fields of international investment and energy law.  Moreover, she has served as a consultant with the OECD and the Columbia Centre on Sustainable Investment, where she contributed to large-scale empirical analyses of international investment treaties and arbitral awards, and has tutored at the Hague Academy of International Law and in Sciences Po.  Ms Florou holds a PhD in international investment law and economics from Sciences Po Law School, in Paris, an LL.M. from the Fletcher School of Law & Diplomacy and has also studied at the University of Berkeley, Queen Mary University of London, and Athens Law School.

The event was chaired by Mr Graham Coop, Partner at Volterra Fietta.  Mr Coop is qualified as a barrister and solicitor in New Zealand and as a solicitor with higher rights of audience (Civil) in England and Wales, and his thirty-year legal career includes seven years as General Counsel to the Energy Charter Secretariat between 2004 and 2011.  Mr Coop advises and represents companies, governments and international organisations on international dispute resolution and public international law, with a particular focus on the energy, natural resources and infrastructure and banking sectors.  He has appeared as counsel, advocate and expert before a wide range of international courts and tribunals, including the International Court of Justice, ICSID, the PCA and the ICC.  As counsel he has presented submissions and conducted detailed cross-examinations of leading experts on many aspects of the Achmea issue.  He is on the UK Attorney General’s list of public international law practitioners.

 

For any queries regarding the content of the webinar, please email graham.coop@volterrafietta.com.