On 16 May, 2017 the European Court of Justice (the Court) rendered its Opinion on the competence of the European Union to conclude the Free Trade Agreement (FTA) with Singapore. The Opinion recognises exclusive EU competence over most of the agreement and largely settles a long-standing dispute between the Commission and the Member States on the division of competences under the Lisbon Treaty.
Importantly, in the context of investor-state dispute resolution, the Court's Opinion is likely to render any agreement including protection for non-direct foreign investments or investor-state dispute settlement (ISDS) provisions a so-called "mixed agreement" which requires each of the Member States as well as the EU itself to become party, unless certain aspects commonly found in such agreements are removed or the Member States otherwise agree (discussed further below).
The Opinion will have a major impact on the negotiation of future EU trade agreements, whether pending or anticipated (including the potential FTA between the UK and the EU following Brexit).
At a ceremony in Singapore on 31 August 2015, representatives of the International Tribunal for the Law of the Sea (ITLOS) and the Singaporean Ministry of Law signed a Joint Declaration for Singapore to provide facilities to ITLOS whenever it is desirable for ITLOS or a special chamber of ITLOS to exercise its functions in Singapore. ITLOS announced the arrangements in a joint press release, available here.
Established by the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) in 1982, ITLOS sits to hear any dispute concerning the interpretation or application of the Convention. Currently, there are 167 parties to the Convention, which comprises 166 States and the European Union. Importantly, the United States has not signed or ratified the UNCLOS. Since it was founded in 1996, ITLOS has heard 24 cases (only five of which have been on the merits).
In Alberto Justo Rodriguez Licea and others v Curacao Drydock Co, Inc, the Singapore High Court dismissed an appeal against the enforcement of a multi-million dollar judgment issued in the United States awarding damages to Cuban plaintiffs under the US Alien Tort Statute (ATS).
In addition to providing useful guidance on the defences which may be raised to resist enforcement of a foreign judgment in Singapore, the judgment is reflective of a worldwide trend whereby courts are increasingly prepared to hear claims that corporations have violated human rights and to ensure that victims receive compensation.