Advocate General issues opinion that the EU does not have exclusive competence to conclude the EU-Singapore Free Trade Agreement

The post below was first published on our Arbitration blog

In an opinion issued on 21 December 2016, EU Advocate General Eleanor Sharpston QC has concluded that the EU-Singapore Free Trade Agreement (EUSFTA) will need to be finalised by the European Union and the Member States acting jointly, i.e. entered into by the EU and all of its Member States (as a so-called “mixed agreement”), not just by the EU alone. Although the opinion does not bind the CJEU, the court tends to follow the approach adopted by the Advocate General. The CJEU is expected to issue its own judgment in 2017.

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CAN ACQUIRED RIGHTS PROVIDE PROTECTION FOR INDIVIDUALS AND BUSINESSES POST-BREXIT?

An important area of law requiring consideration in the context of the UK's planned withdrawal from the EU is the question of whether rights granted to individuals and businesses during the UK's membership of the EU will endure following its exit. The question is relevant for both EU Member State nationals exercising their rights in the UK and UK nationals exercising their rights in EU Member States, such nationals including individuals and businesses. In legal terms, this topic centres on the question of whether such rights constitute "acquired" or "vested" rights. In the specific context of Brexit, the rights that are likely to be of key concern are free movement of workers, freedom of establishment and free movement of goods and services.

We provided an overview of the concept of acquired rights in our e-briefing on the international law implications of Brexit (available here). This briefing will look at the issue in more detail, in particular, providing an overview of the concept as it has evolved from a legal standpoint and exploring the potential legal sources of acquired rights in the context of Brexit.

Click here to read the post in full.

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CETA UPDATE: CETA IS SIGNED; PROVISIONAL APPLICATION OF CETA AND BREXIT; FIRST GOVERNMENT-TO-GOVERNMENT MEETING TO DISCUSS ESTABLISHING THE MULTI-LATERAL INVESTMENT COURT SYSTEM

The post below was first published on our Arbitration blog

On 30 October 2016, the EU and Canada signed the Comprehensive Economic and Trade Agreement (the CETA).  As explained in our blog post here, the text of the CETA, which was originally agreed in 2014, was subjected to “legal scrubbing” in February 2016 which led to the inclusion, at the instigation of the EU, of an Investment Court System (an ICS) in place of the ad hoc investor-State arbitration provisions which had originally been included in CETA, and are included in roughly 3200 international investment agreements and other treaties.

On 13 and 14 December 2016, the European Commission (the Commission) and the Canadian Government met in Geneva to engage in “exploratory discussions” with government representatives from around the world on the establishment of the multilateral ICS. It will have been the first meeting at government-to-government level on this initiative since the ICS was first proposed by the Commission in its Concept Paper of May 2015. For the multilateral ICS to succeed in the way envisioned by the Commission, broad global support will be required.

The CETA will be provisionally applied in advance of its ratification. However, as discussed below, provisional application will not extend to certain of the substantive investor protections, nor to the ICS. The exclusion of certain provisions from provisional application raises a number of questions as to how the agreement will operate in practice.

Interestingly, whilst the UK has indicated that it intends to provisionally apply the CETA, the exclusion of the ICS from the provisional application has been described by the UK Government as its “main ask” of the EU in this context. The UK Government has also concluded that, even though CETA is being put forward as a “mixed agreement” and ratified by all the Member States, the UK will not automatically benefit from CETA’s provisions after the UK leaves the EU.

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