CJEU upholds opinion of Advocate General and rules that UK can unilaterally cancel Brexit by revoking Article 50

In a landmark decision delivered on an accelerated timetable, the Court of Justice of the European Union (“CJEU“) has ruled that a Member State can unilaterally revoke its notice of intention to withdraw from the European Union (“EU“) under Article 50 of the Treaty on the European Union (“TEU“), upholding the opinion given by the Advocate General last week (see post).

The CJEU, in Wightman and Others v Secretary of State for Exiting the European Union, held that an Article 50 TEU notification can be unilaterally revoked if (1) the revocation is submitted in writing to the European Council (“Council“), (2) the revocation is clear and unequivocal, (3) no withdrawal agreement has entered into force, or if no such agreement has been concluded, the two year (or extended) period has not expired, and (4) the revocation is made in accordance with the Member State’s constitutional requirements.

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Filed under Brexit, EU, EU Law, Treaty negotiation, interpretation and impact, UK

41st FA Mann Lecture: The RT Hon Dominic Grieve QC MP Speech “Brexit – Endgame of International Engagement or a New Start?”

On 22 November, the 41st FA Mann Lecture was delivered by the Rt Hon Dominic Grieve QC MP, speaking on the issue: “Brexit – endgame of international engagement or a new start?”  In the Lecture Mr Grieve observed that while “taking back control” may be a powerful idea in conditions where the decline in general confidence in institutions, both national and supranational, has become so marked, in an increasingly interdependent world, what constitutes the benefit of exclusive control becomes very hard to identify and therefore very hard to achieve without a high level of collateral consequences.  The full text of the Lecture delivered by Mr Grieve can now be found here.

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Filed under Brexit, UK

4th EFILA Annual Conference 2019: The EU and the future of international investment law and arbitration – 31 January 2019, London

The European Federation for Investment Law and Arbitration (EFILA) will be holding its fourth Annual Conference, on 31 January 2019, at Herbert Smith Freehills’ offices in London. The conference will focus on four topics:

  1. the EU’s external investment policy;
  2. the EU’s investment policy towards Asia;
  3. constructing a multilateral investment court: the path ahead; and
  4. the EU’s Energy investment policy.

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Filed under Europe, Investment Arbitration, News

Energy Charter Declaration 2018 – Modernisation of the ECT

The Energy Charter Conference has issued a declaration following the 29th meeting of its Members. This year’s conference, hosted by Romania, focused on the role of innovation in driving energy security, sustainability and prosperity.

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Filed under News, Public International Law, Treaty negotiation, interpretation and impact

41st FA Mann Lecture tomorrow: The Rt Hon Dominic Grieve QC MP considers “Brexit- endgame of international engagement or a new start?”

The 41st of a series of annual lectures in honour of the late Dr FA Mann QC (Hon) (1907-1991) will take place tomorrow in London. This series of lectures, arranged by the Partners of Herbert Smith Freehills LLP, and given under the auspices of the British Institute of International and Comparative Law, focuses on issues of public international law.

Tomorrow’s lecture will be delivered by the Rt Hon Dominic Grieve QC MP on the issue of “Brexit- endgame of international engagement or a new start?”. The event is a public lecture and admission is free. Entry is on a first come, first served basis and an early arrival is recommended.

Further details are below:

 

Speaker: The Rt Hon Dominic Grieve QC MP
Title: Brexit – endgame of international engagement or a new start?
Chair: Murray Hunt, Director, Bingham Centre for the Rule of Law

DATE
Thursday 22 November 2018

TIME
Lecture 6:00pm – 7:00pm, followed by a drinks and networking reception

DRESS CODE
Business casual

VENUE
RSA House, 8 John Adam Street, London
WC2N 6EZ

GET DIRECTIONS

Please note that this is a public lecture and admission is free. Entry will be on a first come, first served basis. An early arrival is therefore recommended.

 

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Filed under Brexit, News

ICSID Tribunal declines jurisdiction due to claimants’ failure to obtain environmental impact assessment in breach of local law

In a recent investment arbitration Award, in Cortec Mining v Kenya, an ICSID tribunal has declined jurisdiction over a claim brought by a trio of mining companies on the basis that the mining licences at issue had not been obtained lawfully due to the Claimants’ failure to obtain the required environmental impact assessments.

In its award of 22 October 2018, the tribunal held that the withdrawal of the Claimants’ mining licence by the Kenyan Government could not be challenged under the 1999 UK-Kenya bilateral investment treaty (“BIT“), as the relevant mining licence had not been obtained lawfully. Despite the fact that the BIT contained no express requirement of compliance with local law, the tribunal nevertheless held that the BIT and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1966 (the “ICSID Convention“) protect only lawful investments. The tribunal affirmed that a principle of proportionality should apply when assessing the impact of unlawful conduct on the right to bring a BIT claim, with minor omissions or inadvertent misstatements not precluding the BIT from applying. However, in this case, environmental considerations were of fundamental importance and non-compliance with the protective regulatory framework was a “serious matter” justifying the tribunal in declining jurisdiction.

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Filed under Africa, Environment, Investment Arbitration, Jurisdiction, Mining

Second Wave of United States Sanctions Against Iran Re-Imposed

Following President Trump’s decision on 8 May, 2018 to withdraw the United States from the Joint Comprehensive Plan of Action (“JCPOA”), the US government announced that it would re-impose pre-JCPOA nuclear-related Iran sanctions (both primary and secondary) that were lifted under the JCPOA. As we reported previously, two “wind-down” periods—of 90 and 180 days respectively—commenced from the day of the announcement, during which non-US, non-Iranian companies were encouraged by the US government to withdraw from operations in Iran that would be affected by re-imposed sanctions. OFAC’s guidance discouraged non-US persons from engaging in new activity during the wind down periods, and stated that any such new activity may be a factor in connection with future enforcement action for actions taken after the wind-down period.

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Filed under Europe, Iran, Middle East, News, Sanctions, US

English Court of Appeal finds good arguable case that public policy exception applies to the foreign Act of State Doctrine allowing Ukraine to argue duress in claim under Eurobonds

In Ukraine v The Law Debenture Trust Corporation plc [2018] EWCA Civ 2026 the English Court of Appeal (the Court) partially upheld an appeal in favour of the state of Ukraine (Ukraine), reversing in part the summary judgment granted to The Law Debenture Trust Corporation plc (the Claimant) by the Commercial Court.

The Claimant brought the claim as the trustee of notes with a nominal value of US$3 billion (the Notes) after Ukraine defaulted on the payment of principal and the final instalment of interest. The sole subscriber of the Notes was the Russian Federation (Russia).

In allowing the appeal in part, the Court found that there was a good arguable case that the public policy exception applied to the foreign act of state doctrine and that Ukraine’s defence of duress – based on allegations of breaches of ius cogens norms of international law and treaty provisions by Russia – was therefore justiciable.

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Filed under Act of State Doctrine, non-justiciability, Public International Law, Russia, State Immunity, UK, Ukraine

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) to come into force on 30th December

Australia has become the 6th country to ratify the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), a trade deal between 11 Pacific nations. Australia’s ratification followed swiftly after Canada deposited its official notice of ratification on 24th October, joining Japan, Mexico, New Zealand and Singapore. The agreement will now come into force on 30th December, 60 days after Australia’s ratification. Continue reading

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Filed under Economic partnership agreement, ISDS Reform, Treaty negotiation, interpretation and impact

Upcoming Fossil Fuels Trial: Juliana v. United States

In August 2015, the United States, then president Barack Obama, and the heads of numerous federal executive agencies were sued in a civil rights action by a group of 21 young people, non-profit organization Earth Guardians, and Dr. James Hansen as guardian for future generations. The action was filed in federal district court in Oregon, where a trial is currently scheduled to begin on October 29.

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Filed under Americas, Environment, News, US