The future of investment arbitration in the light of Opinion 1/17

Alternative dispute resolution (ADR) is constantly gaining ground, both at domestic and international level. New forms of dispute settlement with a mix of public and private components are emerging in fields where this was not the case until recent times, as some contributions to this Zoom-out have attempted to demonstrate. In the field of investment law we have witnessed a somehow opposite trend. Traditionally, disputes in this field have been settled by means of arbitral tribunals established mostly on the basis of bilateral or multilateral investment agreements (IAs) under a variety of arbitration facilities, which are collectively referred to as investor-to-State dispute settlement (ISDS). Traditional ISDS presents many characteristics of ADR, starting from the strong role that private parties play in it (for example when it comes to the appointment of arbitrators). The practice has shown that the system has clear advantages but also undeniable disadvantages. The prevailing opinion in recent years has been that the latter considerably outweigh the former, resulting in what has been termed the backlash against investment arbitration in a volume appeared a few years ago. In this contribution, how-ever, I will not dwell on the details of the crisis that has affected investment arbitration, nor will I engage in a discussion of whether that backlash is entirely justified. My focus will be much more modest. One of the most tangible consequences of this growing dissatisfaction towards investment arbitration is the launch on the part of the EU of a court-like system to settle investment disputes –the now famous investment court system (ICS) –as a replacement to old-fashioned ISDS. The ICS now features in all EU IAs, and has become the standard position of the EU when it comes to dispute settlement in this field. Recently, the ICS has also received the green light of the European Court of Justice (ECJ),raising doubts as to whether traditional ISDS has conclusively been sent to oblivion, at least in the EU. From a political and policy perspective, it is undoubtful that there is a strong stance on the part of the EU and of its Member States against traditional ISDS. This article, however, will focus exclusively on the legal dimension, by examining whether the ECJ’s decision should be read as meaning that investment arbitration is incompatible with the EU legal system. While itis clear that Opinion 1/17 means that the ICS is compatible with EU law, it remains to be seen whether the Court’s finding allows an a contrario reading. Namely, whether it entails the incompatibility with EU law of traditional ISDS. The analysis will start with a brief summary of the events and developments that preceded the creation of the ICS and eventually led to the current situation (Section 2), followed by an examination of the relevant parts of Opinion 1/17 (Section 3). This part will be followed by an appraisal of the possible legal implications of the decision (Section 4). Some conclusions will be offered in the closing section (Section 5) in the attempt to look beyond the boundaries of EU law. Part of topic "The blurring distinction between public and private in international dispute resolution

Litigating Human Rights Disputes Against the EU and the Member States: Some Reflections in Light of Opinion 1/17

The participation of the EU in international dispute settlement has been the subject of a lively academic debate in recent years. This debate was fuelled by some landmark decisions of the CJEU, which has rejected the compatibility with EU law of the Draft Accession Agreement to the ECHR in Opinion 2/13, while giving the green light to the CETA Investment Court System in Opinion 1/17. In light of the Court’s main findings in the latter Opinions, this Article claims to assess the adaptability of the model dispute settlement developed under CETA to the ECHR

The Court of Justice finally rules on the analogical application of Art. 351 TFEU: end of the story?

The possibility to apply by analogy art. 351 TFEU to agreements concluded by the Member States after the deadline set out in the provision yet before the granting of a new competence to the Union has long been discussed by the scholarship. However, until very recently, the Court of Justice had always found a way to avoid the question. In Generalstaatsanwaltschaft München v HF, the Court has adopted a restrictive interpretation of the provision in question, thus ruling out its application by analogy

Respondent Status and Allocation of International Responsibility Under EU Investment Agreements

The academic debate on the international responsibility of the EU has flourished in re- cent years. Much ink has been spilled on the purported unsuitability to the EU of the rules on the responsibility of international organisations as codified by the International Law Commission (ILC). These rules are often criticised for having failed to take into due account the specific characteristics of a sui generis legal actor such as the EU. This friction becomes particularly acute when the EU and the Member States enter into an international agreement that includes a dispute settlement mechanism (IDS). In order to settle a dispute, an IDS would have to decide who acts as respondent and, as a consequence, bears international responsibility. Such decision may, in turn, directly or indirectly affect the autonomy of the EU legal order as defined by the case-law of the European Court of Justice over the years. For this reason, the EU has been attempting to devise tailor-made solutions aimed at preventing that an IDS established by an agreement to which it is a party along- side its Member States may make decisions on questions that would endanger the said autonomy. The aim of this article is to analyse the mechanism concerning the determination of the respond- ent party laid down in EU investment agreements (IAs) for the settlement of Investor-State dis- putes. It is argued that such determination amounts to an implicit acknowledgment of the interna- tional responsibility vis-à-vis the claimant on the part of the designated party. Furthermore, the ar- ticle points out that EU IAs, with their internalisation of issues concerning international responsibil- ity, seem to represent an excellent illustration of how IDS to which the EU is a party should be de- vised, and that the solution therein adopted should become EU’s standard position when it comes to participating to IDS. To this end, the development of a constant and consistent practice may eventually give rise to the long-awaited “special rule” of International Law

Secondo l’avvocato generale Yves Bot, il meccanismo di risoluzione delle controversie in materia di investimenti istituito dal CETA è compatibile con il diritto dell’Unione

Con le (tanto) attese conclusioni presentate il 29 gennaio 2019, l’avvocato generale Yves Bot ha proposto alla Corte di giustizia di formulare un parere positivo in merito alla compatibilità del mecca- nismo di risoluzione delle controversie tra investitore e Stato (di se- guito ‘ICS’, dall’acronimo inglese Investment Court System con cui è conosciuto) istituito dall’accordo economico e commerciale globale firmato dall’Unione europea e i suoi Stati membri, da un lato, e dal Canada, dall’altro (c.d. CETA). La presente nota esamina le motivazioni addotte dall'avvocato generale a sostegno delle proprie conclusioni

NaNet:a low-latency NIC enabling GPU-based, real-time low level trigger systems

We implemented the NaNet FPGA-based PCI2 Gen2 GbE/APElink NIC, featuring GPUDirect RDMA capabilities and UDP protocol management offloading. NaNet is able to receive a UDP input data stream from its GbE interface and redirect it, without any intermediate buffering or CPU intervention, to the memory of a Fermi/Kepler GPU hosted on the same PCIe bus, provided that the two devices share the same upstream root complex. Synthetic benchmarks for latency and bandwidth are presented. We describe how NaNet can be employed in the prototype of the GPU-based RICH low-level trigger processor of the NA62 CERN experiment, to implement the data link between the TEL62 readout boards and the low level trigger processor. Results for the throughput and latency of the integrated system are presented and discussed.Comment: Proceedings for the 20th International Conference on Computing in High Energy and Nuclear Physics (CHEP